United States v. Kevin Hickman , 498 F. App'x 219 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN ANTHONY HICKMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:07-cr-00261-WDQ-8)
Submitted: November 16, 2012 Decided: November 29, 2012
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, NATHANSON & POMMETT, P.C., Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, James Wallner, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Anthony Hickman was convicted of conspiracy to
possess with intent to distribute one kilogram or more of
heroin, and possession with intent to distribute heroin, and
sentenced to concurrent sentences of life and 360 months’
imprisonment. He appealed, and this court affirmed in part,
vacated the conspiracy conviction and corresponding life
sentence, and remanded with directions to enter judgment on a
lesser included offense of a 100-gram conspiracy and to
resentence accordingly. On remand, the district court sentenced
Hickman to concurrent 360-month sentences. Hickman now appeals,
contending that the district court erred in failing to
reconsider his sentence on the possession with intent to
distribute count, and that the district court imposed an
unreasonable sentence. Finding no error, we affirm.
Hickman first argues that the district court erred in
failing to reconsider his 360-month sentence on the possession
with intent to distribute count. We review a district court’s
interpretation of this court’s mandate de novo. United States
v. Susi, 674 F.3d 278, 283 (4th Cir. 2012). If we find error in
the district court’s interpretation, we will reverse, unless the
error was harmless. See id. at 284; see also Fed. R. Crim. P.
52(a). The district court plainly reconsidered the sentence on
this charge when it separately calculated the Guidelines range,
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separately considered defense counsel’s arguments, and
separately announced the sentence on this count. Furthermore,
any error with respect to Hickman’s 360-month sentence on Count
I is harmless, because such error has no effect on Hickman’s
actual term of confinement, in light of his concurrent 360-month
sentence on Count VI.
Hickman next challenges the reasonableness of his
sentences. This court reviews a sentence applying an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The court first reviews for significant procedural
errors, including whether the district court failed to calculate
or improperly calculated the Guidelines range, treated the
Guidelines as mandatory, failed to consider the § 3553(a)
factors, or failed to adequately explain its chosen sentence.
Id. The district court must make an “individualized
assessment,” wherein it applies the relevant § 3553(a) factors
to the facts of the case before it. United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009). The district court should
also address any nonfrivolous arguments for an out-of-Guidelines
sentence and explain why it rejected those arguments. Id. If
the court finds a sentence procedurally reasonable, it then
examines substantive reasonableness, considering the totality of
the circumstances—including the extent of any variance from the
Guidelines. Gall, 552 U.S. at 51. If the sentence is within
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the Guidelines range, the court may adopt a presumption of
reasonableness. Id.Hickman’s aggregate sentence is both procedurally and
substantively reasonable. Despite Hickman’s contentions to the
contrary, the district court correctly applied the § 3553(a)
factors, and adequately explained its rejection of Hickman’s
arguments in support of a downward variance. Moreover, the
court was not required to conduct a departure analysis before
imposing a variance sentence. See United States v. Diosdado-
Star, 630 F.3d 359, 365-66 (4th Cir.), cert. denied 131 S. Ct.
2946 (2011). Furthermore, considering the totality of the
circumstances—including Hickman’s criminal history, his
offenses’ seriousness, and the district court’s modest variance
on Count VI—and applying a presumption of reasonableness as to
the sentence on Count I, we find the district court did not
abuse its discretion in imposing concurrent 360-month sentences.
Accordingly, we affirm the district court’s 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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