United States v. Covington ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNEDY COVINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00632-TLW-1)
Submitted: December 17, 2009 Decided: January 8, 2010
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ORR ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Rose Mary Parham, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kennedy Covington appeals from his 144-month sentence,
entered pursuant to his guilty plea to possession of firearms
and ammunition by a convicted felon, in violation of 18 U.S.C. §
922(g)(1) (2006). As an Armed Career Criminal, Covington faced
a statutory minimum sentence of fifteen years. 18 U.S.C. § 924(e) (2006). However, the district court granted the
Government’s motion pursuant to 18 U.S.C. § 3553(e) (2006) for a
departure below the statutory minimum based upon Covington’s
substantial assistance and calculated a Guidelines range of 140
to 175 months in prison. On appeal, Covington contends that the
district court erred in failing to provide sufficient
explanation for its denial of his request for a variance
sentence and for its ultimate decision to sentence Covington to
144 months. We affirm.
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference 18 U.S.C.
§ 3553(a) or discuss every factor on the record, particularly
when the court imposes a sentence within a properly calculated
Guidelines range. United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). But, at the same time, the district court
“must make an individualized assessment based on the facts
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presented.” Gall v. United States, 552 U.S. 38, 50 (2007).
While the individualized assessment of each defendant need not
be elaborate or lengthy, it must provide a rationale tailored to
the particular case at hand and be adequate to permit appellate
review. United States v. Carter, 564 F.3d 325, 328-29 (4th Cir.
2009). Thus, a recitation of the § 3553 factors and purposes is
insufficient. Likewise, a conclusory statement that a specific
sentence is the proper one does not satisfy the district court’s
responsibilities. Id.
Initially, the district court could not have granted a
variance sentence below the Guidelines range established after
granting the Government’s motion for a downward departure. See
United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009),
cert. denied, 130 S. Ct. 321 (2009); United States v. A.B., 529
F.3d 1275, 1285 (10th Cir. 2008), cert. denied, 129 S. Ct. 440(2008) (holding that district court did not have authority to
depart any further below the statutory minimum after granting
the § 3553(e) motion, and therefore need not consider the §
3553(a) factors); United States v. Williams, 474 F.3d 1130, 1131
(8th Cir. 2007) (“[T]he text of § 3553(e) provides a clear
answer, and . . . Booker does not expand the district court’s
authority to impose a sentence below a statutory minimum.”).
Accordingly, the district court did not have the authority to
impose a sentence shorter than the statutory minimum based on
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factors other than Covington’s substantial assistance. Thus, as
a matter of law, there was no error in rejecting Covington’s
request for a variance based on the offense characteristics and
his criminal history.
To the extent the court was required to give an
adequate explanation for the particular sentence that it chose
within the Guidelines range, the court stated that it considered
the circumstances of the case which provided a reason for the
crime and balanced that against Covington’s Armed Career
Criminal status. While not detailed or lengthy, the district
court’s reasoning was individualized and reflected a considered
rationale.
Based on the foregoing, we affirm Covington’s
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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