United States v. David Mohwish , 546 F. App'x 134 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4140
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID PATRICK MOHWISH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00238-TDS-1)
Submitted: October 29, 2013 Decided: November 7, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Terry Michael Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Patrick Mohwish pled guilty, pursuant to a plea
agreement, to possession of firearms by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). Mohwish’s
advisory Guidelines range of 188 to 235 months’ imprisonment was
based, in part, on his status as an armed career criminal. The
district court denied Mohwish’s motion for a downward variance
to the 180-month mandatory minimum sentence under the Armed
Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e), and
sentenced him to 200 months’ imprisonment. On appeal, counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal
but questioning whether Mohwish’s sentence is substantively
reasonable. Mohwish has filed a pro se supplemental brief, in
which he raises several challenges to his sentence. We affirm.
We turn first to the issues raised in Mohwish’s pro se
supplemental brief. Mohwish argues that the district court
improperly sentenced him as an armed career criminal. We
conclude that, because Mohwish explicitly declined to contest
the enhanced penalties at the sentencing hearing, he has waived
appellate review of the district court’s conclusion that he
qualified as an armed career criminal. See United States v.
Olano, 507 U.S. 725, 733 (1993) (“Waiver is the intentional
relinquishment or abandonment of a known right.” (internal
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quotation marks omitted)); United States v. Claridy, 601 F.3d
276, 284 n.2 (4th Cir. 2010) (“When a claim of . . . error has
been waived, it is not reviewable on appeal.”); United States v.
West, 550 F.3d 952, 958-59 (10th Cir. 2008) (finding that
defendant waived challenge to prior conviction as predicate
offense for ACCA purposes by affirmatively conceding issue in
district court), partially overruled on other grounds as
recognized by United States v. Smith, 652 F.3d 1244, 1246 (10th
Cir. 2011); see also United States v. Taylor, 659 F.3d 339, 348
(4th Cir. 2011) (“[T]he defendant is deemed bound by the acts of
his lawyer-agent.” (internal quotation marks omitted)).
Accordingly, we decline to consider Mohwish’s challenge to his
armed career criminal designation.
Mohwish separately argues that the Government
presented no evidence apart from the presentence report (“PSR”)
that he committed the prior crimes used to enhance his sentence
under the ACCA and that the court failed to explain sufficiently
its reasons for sentencing him as an armed career criminal. To
the extent that Mohwish argues that the Government was required
to present such evidence or that the court was obligated to
explain why Mohwish qualified as an armed career criminal, we
conclude that these arguments are foreclosed by Mohwish’s
failure to object to any aspect of his criminal history. See
United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006)
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(noting district court is free to adopt findings in PSR without
specific inquiry or explanation where defendant fails to
object); United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990) (holding that district court is free to adopt findings in
PSR absent an affirmative showing of error).
Finally, Mohwish argues that the district court erred
by considering certain facts at sentencing that should have been
determined by a jury, in violation of Alleyne v. United States,
133 S. Ct. 2151, 2162-63 (2013) (holding that any fact that
increases statutory mandatory minimum is element of offense and
must be submitted to jury and found beyond reasonable doubt).
We conclude that Alleyne provides no relief to Mohwish, as the
factual findings made by the district court about which Mohwish
complains did not increase his statutory mandatory minimum term
of imprisonment.
We turn next to the issue raised in counsel’s Anders
brief: whether Mohwish’s sentence is substantively reasonable.
We review the district court’s sentence, “whether inside, just
outside, or significantly outside the Guidelines range[,] under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In reviewing a sentence for
substantive reasonableness, we “examine[] the totality of the
circumstances,” and, if the sentence is within the properly
calculated Guidelines range, apply a presumption on appeal that
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the sentence is substantively reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010). Such a
presumption is rebutted only if the defendant shows “that the
sentence is unreasonable when measured against the [18 U.S.C.] §
3553(a) [(2006)] factors.” United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
After reviewing the sentencing transcript, we conclude
that Mohwish’s within-Guidelines sentence is substantively
reasonable. The district court carefully considered the
§ 3553(a) factors and demonstrated particular concern that
Mohwish threatened to use a gun when confronted by the
homeowners from whom he had stolen the guns he possessed, that
he committed the instant offense only six months after being
released from an eleven-year term of imprisonment, and that he
had a lengthy criminal history involving activity that
threatened public safety. Moreover, the court did not ignore
counsel’s mitigating arguments; it explicitly considered
Mohwish’s history of substance abuse and mental health issues,
his age, his employment history, and the abuse he suffered as a
child. In sum, we conclude that Mohwish’s carefully crafted
sentence was not greater than necessary to accomplish the goals
of § 3553(a)(2).
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Mohwish, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Mohwish requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Mohwish.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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