United States v. Jamario Hill ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4333
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMARIO CURTIS HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00100-FDW-1)
Submitted: March 29, 2018 Decided: April 2, 2018
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Anthony Martinez, Federal Public Defender, Ann L. Hester, Assistant Federal Public
Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamario Curtis Hill appeals his conviction and 58-month sentence imposed
following his guilty plea to possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2012). On appeal, Hill’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal but questioning whether the district court erred in applying an enhanced base
offense level. Hill was notified of his right to file a pro se supplemental brief but has not
done so. The Government has declined to file a response brief. For the reasons that
follow, we affirm.
We review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We first
determine whether the district court committed significant procedural error, such as
incorrect calculation of the Sentencing Guidelines range, inadequate consideration of the
18 U.S.C. § 3553(a) (2012) factors, or insufficient explanation of the sentence imposed.
United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
In evaluating the district court’s Guidelines calculations, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States v.
White, 771 F.3d 225, 235 (4th Cir. 2014). We review unpreserved Guidelines challenges
for plain error. United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015); see
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343, 1345 (2016) (describing
standard).
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If we find no procedural error, we examine the substantive reasonableness of the
sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51. The sentence
imposed must be “sufficient, but not greater than necessary,” to satisfy the goals of
sentencing. See 18 U.S.C. § 3553(a). We presume on appeal that a within-Guidelines
sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014). Hill bears the burden to rebut this presumption “by showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
In his Anders brief, counsel advises that Hill has questioned the impact of
Johnson v. United States, 135 S. Ct. 2551 (2015), on his enhanced base offense level.
Hill received an enhanced base offense level based on the sentencing court’s finding that
he committed his underlying federal offense “subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance offense.” U.S.
Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2015); see USSG § 4B1.2(a) (defining
“crime of violence”). As a predicate crime of violence for the enhancement, the court
relied upon Hill’s prior North Carolina conviction for robbery with a dangerous weapon.
In light of recent authority, we conclude that there was no procedural error in
calculating the sentence. In Johnson, the Supreme Court determined that the residual
clause of the Armed Career Criminal Act (ACCA), reaching offenses that “involve[]
conduct that presents a serious potential risk of physical injury to another,” see 18 U.S.C.
§ 924(e)(2)(B)(ii) (2012), is unconstitutionally vague. 135 S. Ct. at 2556-63. In Beckles
v. United States, 137 S. Ct. 886 (2017), however, the Supreme Court declined to extend
the reasoning in Johnson to the Guidelines, holding that the Guidelines are not subject to
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a due process vagueness challenge and that the residual clause under USSG § 4B1.2(a) is
not void for vagueness. 137 S. Ct. at 895. In light of Beckles, Hill cannot raise a
vagueness challenge to his predicate crimes of violence under Johnson. Further, any
potential challenge Hill could raise to the classification of his predicate conviction as a
crime of violence is foreclosed by recent authority from this court. See United States v.
Burns-Johnson, 864 F.3d 313, 315 (4th Cir.) (holding that North Carolina robbery with
dangerous weapon categorically qualifies as violent felony under ACCA’s force clause),
cert. denied, 138 S. Ct. 461 (2017) ; see also United States v. Montes-Flores, 736 F.3d
357, 363 (4th Cir. 2013) (recognizing that decisions evaluating whether offense qualifies
as ACCA violent felony are used interchangeably with decisions evaluating whether
offense qualifies as Guidelines crime of violence). Thus, we find no error, plain or
otherwise, in Hill’s enhanced base offense level.
Our review of the record reveals that Hill’s sentence is reasonable. The district
court properly calculated Hill’s Guidelines range and sentenced him below the advisory
Guidelines range and the applicable statutory maximum. The court considered the
parties’ arguments in sentencing Hill and articulated a reasoned basis for the sentence it
imposed, grounded in the 18 U.S.C. § 3553(a) factors. Further, Hill fails to rebut the
presumption of reasonableness accorded his below-Guidelines sentence. See Louthian,
756 F.3d at 306.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Hill’s conviction and
sentence. This court requires that counsel inform Hill, in writing, of the right to petition
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the Supreme Court of the United States for further review. If Hill 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 Hill.
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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