United States v. King , 226 F. App'x 305 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEX OHARA KING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (7:05-cr-00088-FL-DAN)
Submitted: January 19, 2007 Decided: March 16, 2007
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana Pereira, Research and
Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer May-Parker, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Alex Ohara King appeals his sentence of 84 months’
imprisonment, which was at the low end of the advisory guidelines
range, arguing that it was unreasonable. Because King has failed
to rebut the presumption of reasonableness attached to his within-
the-guidelines sentence, we affirm.
I.
On April 26, 2004, the Brunswick County Sheriff’s Office
responded to a shooting, which occurred at Travis Johnson’s
residence in Supply, North Carolina. An investigation revealed
that on that day, King approached Johnson and his friend Kenneth
Bryant, Jr., who were both sitting on Johnson’s porch. King said
to Bryant, “I heard you were at my house.” (J.A. at 110.)1 King
then drew a handgun and fired at Bryant, although he failed to hit
him. King attempted to fire again, but the gun malfunctioned.
Bryant retreated into the house unharmed, and King eventually fled
the scene.
A warrant was subsequently issued for misdemeanor assault with
a deadly weapon, and on April 30, 2004, King surrendered to the
Sheriff’s Office. King also surrendered the .380 caliber handgun
that he had used to fire at Bryant. King stated that he shot at
1
Citations to the “J.A.” refer to the joint appendix filed
with this appeal.
2
Bryant because Bryant had previously made sexual advances toward
King’s teenage daughter.
On January 13, 2005, the Sheriff’s Office conducted an
unrelated traffic stop of King’s vehicle. King was arrested for
driving with a suspended license and it was determined that he had
an unrelated outstanding warrant. King consented to a search of
his vehicle, and the police found an assault rifle and two thirty-
round magazines stored under the rear seat where his infant son was
seated. The police also discovered a small amount of cocaine base,
which King stated he was going to trade for sex.
Approximately seven months later, on July 7, 2005, the
Sheriff’s Office responded to a shooting in Supply. Investigators
found the victim, Melissa Carpenter, who had been shot in the leg
by King. Carpenter did not wish to press charges, but stated that
she and King had been fighting when King shot her. The next day,
King turned in a .22 caliber revolver to the police, which he
stated he had wrestled away from Carpenter. On July 14, 2005, King
traveled to the Sheriff’s Office to talk with investigators. Upon
his arrival, investigators searched his car and discovered eight
rounds of .380 caliber ammunition.
On August 10, 2005, King was named in a four-count indictment
in the Eastern District of North Carolina, charging him with being
a felon in possession of a firearm on April 30, 2004 (Count One);
on January 13, 2005 (Count Two); on July 7, 2005 (Count Three); and
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with being a felon in possession of ammunition on July 14, 2005
(Count Four), each count a violation of 18 U.S.C. § 922(g)(1).
King pleaded guilty to Count One without a plea agreement, and
the Government thereafter dismissed Counts Two through Four. Based
on prior felony convictions for assault with a deadly weapon and
common law robbery,2 the pre-sentence report (PSR) determined
King’s base offense level for his § 922(g) conviction to be 24.
Pursuant to § 2K2.1(b)(1)(A) of the 2005 Sentencing Guidelines
Manual, the PSR recommended a two-level upward adjustment on a
finding that the offense involved three different firearms.
Pursuant to § 2K2.1(b)(5), the PSR also recommended a four-level
upward adjustment on a finding that King used a firearm in
connection with another felony offense. Finally, the PSR
recommended a two-level downward adjustment based on King’s
acceptance of responsibility. The end result was a total
recommended offense level of 28. Based on King’s criminal history
category of VI, the guideline range would have been 140 to 175
months. The statute, however, allows only for a maximum sentence
of 120 months, so the PSR identified the guideline range as 120
months’ imprisonment. See 18 U.S.C.A. § 924(a)(2) (West 2000 &
Supp. 2006) (providing in relevant part that whoever knowingly
2
The PSR noted that King had twice been convicted of
misdemeanor assault with a deadly weapon, once of common law
robbery, twice of assault on a female, once of credit card fraud,
as well as various other convictions.
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violates § 922(g) is subject to imprisonment of “not more than 10
years”).
King objected to the PSR, contending that his criminal history
category should have been V, and that his total offense level
should have been 17, resulting in a guideline range of 46 to 57
months. King further argued that because of his family
responsibilities (he is the primary provider for his children) and
the victim’s conduct (contending that Bryant instigated King’s
assault), a downward variance from the guidelines was warranted.
The district court then conducted a lengthy sentencing
hearing. The court began by noting King’s extensive criminal
history and his past drug use. It also noted that he was employed
and responsible for his children, and the court considered letters
written by King’s children on his behalf. Addressing King’s
specific objections to the PSR, the district court sustained King’s
objections to the four-level enhancement for possessing a firearm
in connection with another felony and the two-level enhancement for
the involvement of three or more firearms. The district court,
however, overruled King’s objection to use of his assault
convictions as part of his criminal history. The district court
therefore concluded that King’s total offense level should be set
at 22, resulting in an advisory guidelines range of 84-105 months.
At the district court’s behest, King’s counsel then addressed
the court concerning his motion for a downward departure or a
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variance. First, the district court found that there was no
support for a sentencing departure based on the victim’s conduct,
because King’s response was “disproportionate.” (J.A. at 86.)
Because Bryant was nowhere near the vicinity of King’s house or
daughter, it was not necessary for King to locate him on a friend’s
porch and fire errant rounds at Bryant. The district court also
found that King’s family circumstances were not extraordinary.
Accordingly, the district court declined to vary from the
guidelines.
Toward the conclusion of the sentencing hearing, the district
court noted that it had considered King’s guideline range as well
as other factors in addition to and including the factors set forth
in the Sentencing Reform Act. The district court noted that King
should participate in an intensive drug treatment program and
recommended physical and mental health treatment as well. Although
the district court explicitly considered King’s “responsibilities
as a family man,” (J.A. at 97), it determined that a sentence of 84
months’ imprisonment at the low end of the guideline range was
necessary and appropriate because it was clear that King had put
numerous members of the public and his family at risk and needed to
“get over some demons.” (J.A. at 97.)
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II.
Because King was sentenced under the advisory guidelines, we
review his sentence for reasonableness. United States v. Green,
436 F.3d 449, 456 (4th Cir. 2006). The reasonableness of a
sentence turns on the peculiar facts of each case, but “certain
principles would appear to be universally applicable.” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006). “Foremost
among these is that a sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006). “This approach to
post-Booker appellate review is required for three basic reasons:
the process by which the Guidelines were established, their
incorporation of Congress’s sentencing objectives, and the
individualized factfinding required to apply them.” Id. In
determining whether a sentence was reasonable, we review the
district court’s legal conclusions de novo and its factual findings
for clear error. United States v. Hampton, 441 F.3d 284, 287 (4th
Cir. 2006). “Reasonableness review involves both procedural and
substantive components.” United States v. Moreland, 437 F.3d 424,
434 (4th Cir. 2006).
King argues that a lower sentence was appropriate in light of
the 18 U.S.C.A. § 3553(a) factors and that the district court
procedurally erred in failing to explain why a sentence of 84
months was appropriate. King’s arguments are without merit.
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King “can only rebut the presumption [of reasonableness] by
demonstrating that [his] sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted). King’s brief, however, fails to explain how his sentence
is unreasonable under those factors, which are:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the
need for the sentence imposed - (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to
protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational
of vocational training, medical care, or other
correctional treatment in the most effective manner; (3)
the kinds of sentences available; (4) the kinds of
sentence and the sentencing rage established [by the
guidelines]; (5) any pertinent policy statement issued by
the Sentencing Commission . . .; (6) the need to avoid
unwarranted sentence disparities . . .; and (7) the need
to provide restitution to any victims of the offense.
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
King’s two primary arguments -- (1) that he has family
responsibilities and (2) that the victim’s conduct was responsible
for his gun possession -- are of no help to him. The guidelines
manual explains that “family ties and responsibilities are not
ordinarily relevant in determining whether a departure may be
warranted.” U.S. Sentencing Guidelines Manual § 5H1.6 (2005). We
have interpreted this section as standing for the proposition that
a downward departure based on family responsibilities should be
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available only for “extraordinary circumstances.” United States v.
Brand, 907 F.2d 31, 33 (4th Cir. 1990).
On the other hand, the manual does explain that “[i]f the
victim’s wrongful conduct contributed significantly to provoking
the offense behavior, the court may reduce the sentence below the
guideline range to reflect the nature and circumstances of the
offense.” U.S. Sentencing Guidelines Manual § 5K2.10. King cannot
show, however, that the victim’s behavior contributed significantly
to his offense. Although King fired at Bryant on April 26, 2004,
he was charged with possessing a firearm on April 30, 2004.
Putting aside Bryant’s alleged conduct, Congress has clearly
criminalized King’s possession of a firearm, regardless of whether
that possession was designed to defend a family member. See, e.g.,
United States v. Gilbert, 430 F.3d 215, 220 (4th Cir. 2005)
(“Congress sought to keep guns out of the hands of those who have
demonstrated that they may not be trusted to possess a firearm
without becoming a threat to society.” (internal quotation marks
omitted)). The wisdom in Congress’s trust issues is well-supported
by King’s conduct in this case. Moreover, there was a significant
temporal gap between the victim’s alleged conduct and King’s
response, and as the district court properly recognized, King’s
response was clearly “disproportionate.” (J.A. at 86.) King also
continued to possess the gun thereafter, as well as other guns and
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ammunition. Thus, King cannot show that his within-the-guidelines
sentence was substantively unreasonable.
King further contends that his sentence was procedurally
unreasonable because the district court “provided no explanation
for its decision to impose an 84 month sentence.” (Appellant’s Br.
at 14.) The record clearly refutes this contention.
Although a district court must consider the § 3553(a) factors
and any meritorious arguments raised by both parties before
imposing a sentence, “this is not to say that the district court
must robotically tick through § 3553(a)’s every subsection.”
Johnson, 445 F.3d at 345. “This is particularly the case when the
district court imposes a sentence within the applicable Guidelines
range.” Id. “Requiring district courts to address each factor on
the record would . . . be an exercise in unproductive repetition
that would invite flyspecking on appeal.” Id.Here, the district court explicitly stated that it had
considered the § 3553(a) factors, and that alone “may well have
been sufficient.” Id. Regardless, “the district court went
considerably further by undertaking a detailed inquiry into the
various circumstances bearing upon [King’s] sentence. It addressed
[King’s] character, specifically took note of letters written on
his behalf, and heard argument on, inter alia, the circumstances of
his offenses and his relationship with his family.” Id. at 346.
Thus, the district court here performed its task just as well, if
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not better, than the sentencing court in Johnson. Like the court
under review in Johnson, the district court here also recommended
King for special treatment programs, and although it “did not
explicitly match these various findings to particular § 3553(a)
factors, it was not required to do so.” Id. In short, the
district court took a model approach to sentencing King, taking
seriously King’s arguments, his guideline range, and the § 3553(a)
factors. After doing so, it imposed an entirely reasonable
sentence. Accordingly, “[n]othing about the proceedings suggests
[King’s] request for a remand is well-taken.” Id.
III.
Accordingly, we affirm King’s sentence. We dispense with oral
argument because the facts and legal conclusions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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