United States v. Devin Ebron ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4237
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVIN LAMAR EBRON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Louise W. Flanagan, District Judge. (4:17-cr-00028-FL-1)
Submitted: November 30, 2018 Decided: December 20, 2018
Before WILKINSON and NIEMEYER, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Richard E. Rowe, GREENE & WILSON, P.A., New Bern, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Robert J. Dodson, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Devin Lamar Ebron pled guilty, without a plea agreement, to two counts of
distribution of cocaine base (“crack”), in violation of 21 U.S.C. § 841(a)(1) (2012).
Ebron’s Sentencing Guidelines range, which was driven by his career offender
designation, was 188 to 235 months’ imprisonment. At sentencing, Ebron argued for a
79-month sentence, a term 109 months below the bottom of the advisory Guidelines
range. The district court imposed concurrent terms of 164 months’ imprisonment on each
count, a downward variance of 24 months below the bottom of the Guidelines range.
Ebron timely appealed, arguing that the district court failed to meaningfully consider his
arguments in mitigation. We affirm.
When rendering a sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of the case. United States v.
Carter, 564 F.3d 325, 328, 330 (4th Cir. 2009). The sentencing court must provide
specific reasons supporting the sentence, but the explanation “need not be exhaustive.”
United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014). Nevertheless, the court’s
reasoning must be sufficient “to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a
different sentence than that set forth in the advisory Guidelines, a district judge should
address the party’s arguments and explain why he has rejected those arguments.” United
States v. Bollinger, 798 F.3d 201, 220 (4th Cir. 2015) (internal quotation marks omitted).
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Although it is sometimes possible to discern a sentencing court’s rationale from the
context surrounding its decision, United States v. Montes-Pineda, 445 F.3d 375, 381 (4th
Cir. 2006), “an appellate court may not guess at the district court’s rationale, searching
the record for statements by the Government or defense counsel or for any other clues
that might explain a sentence[,]” Carter, 564 F.3d at 329-30. An insufficient explanation
of the sentence imposed constitutes significant procedural error by the district court.
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Where, as here, the defendant properly preserved the issue of whether the
explanation was adequate by arguing for a sentence different than that which was
imposed, this court reviews the issue for abuse of discretion. Id. If this court finds such
abuse, the court must reverse unless it concludes that the error was harmless. Id. An
error is harmless if the Government shows “that the error did not have a substantial and
injurious effect or influence on the result and we can say with fair assurance that the
district court’s explicit consideration of the defendant’s arguments would not have
affected the sentence imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th Cir.
2010) (alterations and internal quotation marks omitted).
The court granted Ebron a downward variance, albeit a much more modest
variance than that requested by Ebron. In explaining the variance at the sentencing
hearing, the court merely stated that it was appropriate under the circumstances of the
case. In the Statement of Reasons, however, the court elaborated that the small quantity
of drugs involved in the case was a mitigating factor for the variance. Neither at the
sentencing hearing nor in the Statement of Reasons did the court address Ebron’s
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argument that he should receive a more substantial variance because his career offender
predicate offenses were nonviolent drug crimes, nor in explaining the sentence imposed
did the court address Ebron’s argument concerning his rehabilitation efforts.
Even assuming, arguendo, that the sentencing court committed procedural error in
failing to adequately consider Ebron’s arguments in mitigation, see United States v. Blue,
877 F.3d 513, 521 (4th Cir. 2017) (holding that this court will not “assume that a
sentencing court truly considered a defendant’s nonfrivolous arguments or his individual
characteristics when the record fails to make it patently obvious” (internal quotation
marks omitted)), we conclude that any error was harmless, Boulware, 604 F.3d at 839-40.
A sentencing error is harmless if the sentence imposed “is not longer than that to which
the defendant would otherwise be subject.” United States v. Martinovich, 810 F.3d 232,
243 (4th Cir. 2016) (alterations and internal quotation marks omitted).
The district court commenced the sentencing hearing by summarizing Ebron’s
extensive criminal history and noting that his 19 criminal history points placed him “very
firmly in the highest Criminal History Category.” The court stated on the record that it
had read Ebron’s sentencing memorandum and asked questions during defense counsel’s
argument about Ebron’s rehabilitation efforts, specifically details regarding when, as a
state prisoner, Ebron took a vocational course. During Ebron’s allocution, the court also
engaged in dialogue with Ebron, countering Ebron’s argument that he faced a long
sentence by opining that he had received lenient treatment at times in the state system.
The court considered the 18 U.S.C. § 3553(a) (2012) sentencing factors, observing that
Ebron’s record demonstrated that he did not respect the law, was someone against whom
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the public needed protection, and that he needed to be deterred from further criminal
activity. Additionally, in pronouncing Ebron’s sentence, the court stated that his current
offenses poisoned communities with crack and were very dangerous, which indicated that
the court was not swayed by Ebron’s argument that a below-Guidelines sentence was
warranted because his prior drug convictions that qualified as career offender predicates
were nonviolent. On this record, we conclude that the district court would impose the
same sentence even if the case were remanded for the court to address on the record
Ebron’s arguments in mitigation.
Accordingly, we affirm the criminal judgment. 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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