United States v. Antonio Frazier , 621 F. App'x 166 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LAMONT FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:14−cr−00062−JAG−1)
Submitted: May 29, 2015 Decided: August 28, 2015
Before WILKINSON, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Mary E. Maguire, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, Michael A. Jagels, Special
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Lamont Frazier pleaded guilty without a plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The presentence
report (“PSR”) calculated a Sentencing Guidelines range of 84-
105 months’ imprisonment. The district court sentenced Frazier
to the statutory maximum of 120 months’ imprisonment.
Frazier appeals his sentence, challenging its procedural
and substantive reasonableness. We affirm.
I.
A.
In January 2014, Frazier was approached by police in a
housing project in Richmond, Virginia. He began to run, but he
slipped and fell. As Frazier lay on the ground, officers
observed a black semi-automatic Ruger 9mm handgun in his hand.
Frazier was arrested. A search of his person revealed a clear,
plastic sandwich bag that contained seven individually wrapped
plastic bag corners, which Frazier reported contained heroin.
B.
Frazier was indicted and pleaded guilty without a plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). The Presentence
Investigation Report (“PSR”) computed his base offense level as
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24, based on two prior felony convictions for a controlled
substance offense and for a crime of violence, as defined in
United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2 (2014).
The prior conviction for a crime of violence was for possession
of a short-barrel shotgun, while the controlled substance
conviction was for possession of heroin with intent to
distribute.
The PSR noted that Frazier possessed the 9mm handgun in
connection with another offense and enhanced his offense level
by four. Frazier’s offense level was decreased by three levels
for acceptance of responsibility, resulting in a total offense
level of 25. Together with a criminal history category of IV,
Frazier’s Guidelines range was 84-105 months’ imprisonment. 1
Frazier did not object to the PSR’s Guidelines range, but
he did ask the district court to vary down from the range and
impose a sentence of 60 months’ imprisonment. After considering
the parties’ arguments and each factor under 18 U.S.C.
§ 3553(a), the court varied up from the Guidelines range and
1According to Frazier, had the conviction for possession of
a short-barrel shotgun not counted as a crime of violence, his
base offense level would have been 22 and his Guidelines range
would have been 70-87 months’ imprisonment. While we believe
the correct base offense level would have been 20, with a
Guidelines range of 57-71 months’ imprisonment, the difference
does not affect our analysis.
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sentenced Frazier to the statutory maximum of 120 months’
imprisonment.
Frazier filed a timely appeal.
II.
A.
The Guidelines provide for an enhancement to the sentence
of a “career offender” if, among other requirements, the
defendant has at least two prior felony convictions for either a
“crime of violence” or a controlled substance offense.
§ 4B1.1(a). The Guidelines define a “crime of violence” in
relevant part as an offense that “is [the] burglary of a
dwelling, arson, or extortion, involves use of explosives” or,
in what is known as the residual clause, “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” § 4B1.2(a)(2).
B.
Frazier challenges the procedural reasonableness of his
sentence on two grounds. First, he argues that the district
court erred by enhancing his sentence under the Guidelines
residual clause because that clause is unconstitutionally vague.
Second, Frazier contends that his prior conviction for
possession of a short-barrel shotgun does not fall within the
Guidelines residual clause definition of “crime of violence,”
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because it is not similar, in kind or in degree of risk posed,
to the offenses enumerated within § 4B1.2.
Because Frazier raises these claims for the first time on
appeal, we review for plain error. United States v. Lynn, 592
F.3d 572, 577 (4th Cir. 2010). To meet his burden, Frazier must
show that an error (1) was made, (2) is plain, and (3) affects
his substantial rights. Id. If Frazier makes this showing, we
have discretion to remedy the error, and will do so “only if the
error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Puckett v. United States,
556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
An error is plain when it is “clear or obvious,” meaning
that “the settled law of the Supreme Court or this [court]
establishes that an error has occurred,” or, in some cases, when
authority from other circuits is unanimous. United States v.
Carthorne, 726 F.3d 503, 516 & n.14 (4th Cir. 2013). In
assessing a defendant’s claim, an error need only be plain by
the time of appellate review. Henderson v. United States, 133
S. Ct. 1121, 1130 (2013).
In Johnson v. United States, 135 S. Ct. 2551, 2557 (2015),
the Supreme Court held that the residual clause of the Armed
Career Criminal Act (the “ACCA”) is unconstitutionally vague.
Because the ACCA residual clause and the Guidelines residual
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clause are “substantially similar,” United States v. Seay, 553
F.3d 732, 738 (4th Cir. 2009), this case presents the issue of
whether the holding in Johnson extends to the Guidelines
residual clause. 2
We assume without deciding that plain error occurred,
meaning that Frazier’s proper Guidelines range should have been
either 57-71 or 70-87 months in prison. Nonetheless, for an
error to affect a defendant’s substantial rights, “he must
demonstrate that it ‘affected the outcome of the district court
proceedings.’” Puckett, 556 U.S. at 135 (quoting Olano, 507
U.S. at 734). As applied here, Frazier must point to “a
nonspeculative basis in the record to conclude that the district
court would have imposed a lower sentence but for the error in
calculating [the defendant’s] offense level.” United States v.
Knight, 606 F.3d 171, 180 (4th Cir. 2010).
Frazier fails to make this showing. Not only did the
district court reject Frazier’s request for a downward variant
sentence, but it also chose to vary upward to the statutory
maximum prison term for the offense, reasoning that
2In United States v. Hood, 628 F.3d 669, 670 (4th Cir.
2010), we held that possession of a sawed-off shotgun
constitutes a “crime of violence” under the Guidelines residual
clause. Frazier acknowledges that his arguments are currently
foreclosed by Hood and, of course, the district court did not
have the benefit of the Supreme Court’s guidance in Johnson when
it sentenced Frazier.
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“[g]iven . . . the danger to the public and the prior criminal
history, and . . . the fact that the longest stretches of
noncriminal behavior occur when [Frazier is] in prison, I think
that a sentence of 120 months . . . is sufficient but does not
exceed the amount of time necessary to achieve the goals of
sentencing.” J.A. 98.
On this record, it would be sheer speculation to conclude
that the district court would have imposed a lesser sentence but
for the alleged error. Thus, we decline to find plain error
with respect to the district court’s calculation of the
Guidelines range.
III.
We next consider Frazier’s argument that the district court
abused its discretion when it varied upward from the Guidelines
range in sentencing him. Frazier contends that his sentence is
substantively unreasonable for three reasons. First, he argues
that the district court did not adequately consider the
sentences requested by the parties. The government asked for a
sentence within the Guidelines range, 3 while Frazier requested
that the district court vary downward to 60 months’
3
But the government noted that it would not object to a
sentence at the statutory maximum. J.A. 77.
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imprisonment. Second, Frazier asserts that the district court
placed too much weight on his criminal record and gave
insufficient consideration to the evidence in mitigation.
Third, Frazier contends that the district court performed a
formulaic review of the 18 U.S.C. § 3553(a) factors, without
substantively considering each individual factor.
We review sentencing decisions for reasonableness under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007). We consider the sentence’s
substantive reasonableness by “tak[ing] into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. at 51. A district
court has discretion to sentence a defendant outside of the
Guidelines range, so long as it considers the parties’ arguments
and provides a sufficient and reasoned basis for its departure
or variance. See United States v. Diosdado-Star, 630 F.3d 359,
364-65 (4th Cir. 2011) (noting that the district court’s
decision to depart or vary does not change this court’s review
or the justification that the district court must provide). A
minor variance from the Guidelines range requires a less
significant justification than a major one. See Gall, 552 U.S.
at 50.
Before sentencing, the district court notified the parties
that it would consider sentencing Frazier above the Guidelines
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range, up to the statutory maximum. The PSR suggested that an
upward departure from the Guidelines range might be warranted,
because Frazier’s adult criminal record contained two felony
convictions and four misdemeanor convictions that were not
considered in calculating his criminal history category. See
U.S.S.G. § 4A1.3(a)(2) (noting that a district court may support
an upward departure by considering prior sentences not used in
calculating the defendant’s criminal history category). The
convictions that were not considered include abduction, assault
and battery, damage to property, carrying a concealed weapon,
and carrying a loaded shotgun. The PSR also noted a potential
likelihood of Frazier’s committing other crimes, as he had been
found in violation of his supervised release on two occasions.
At sentencing, the district court chose not to depart.
Instead, it heard both parties’ arguments and considered each
§ 3553(a) factor in turn before deciding to impose a variant
sentence. In considering Frazier’s history and characteristics,
the district court recognized Frazier’s difficult upbringing,
substance abuse issues, and history of depression. But the
court also noted that Frazier has “a long history of violent and
nonviolent crime, which includes a fondness for firearms.” J.A.
93. The court further noted Frazier’s “unrepentant criminal
activity, his past assaultive behavior, . . . his past
possession of firearms, and the danger he poses to the public.”
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J.A. 97. In deciding to impose the statutory maximum prison
term, the district court stated that a 120-month sentence would
“reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence, and
protect the public from further crimes that Mr. Frazier may
commit.” J.A. 98.
We find that Frazier’s sentence is substantively
reasonable. The district court adequately considered the
parties’ arguments and the § 3553(a) factors before deciding
that an upward variance was appropriate. In so doing, it acted
well within its discretion.
IV.
For the above reasons, we affirm the judgment of the
district court. 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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