United States v. Julius Nesbitt , 464 F. App'x 89 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5221
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JULIUS NESBITT, a/k/a Butch,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:08-cr-01153-DCN-1)
Submitted: January 31, 2012 Decided: February 6, 2012
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Peter T. Phillips, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julius Nesbitt appeals his conviction and 151-month
sentence of one count of conspiracy to possess with intent to
distribute and distribute oxycodone, in violation of 21 U.S.C.
§ 846 (2006); two counts of possession with intent to distribute
and distribution of oxycodone, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(C) (West Supp. 2011); one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006); and one count of causing
the Coast Guard to attempt to save a life and property when no
help was needed, in violation of 14 U.S.C. § 88(c) (2006).
Counsel for Nesbitt filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in denying Nesbitt’s motions to dismiss and
for a Franks * hearing. Nesbitt filed a pro se supplemental
brief, arguing that the district court erred in denying his
motions to dismiss on speedy trial grounds and for a Franks
hearing and in permitting the Government to use visual aids
during its closing argument.
Upon review of the record, we directed supplemental
briefing on the issues of whether the district court erred in
*
Franks v. Delaware, 438 U.S. 154 (1978).
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denying Nesbitt’s motion to dismiss on speedy trial grounds and
whether the district court abused its discretion in failing to
adequately explain the sentence imposed. We now affirm
Nesbitt’s convictions, but we vacate the sentence and remand for
resentencing.
We review a district court’s factual findings in its
ruling on a motion to dismiss for clear error and its legal
determinations de novo. United States v. Kellam, 568 F.3d 125,
132 (4th Cir. 2009). The Speedy Trial Act requires that a
defendant’s trial “commence within seventy days from the filing
date . . . of the information or indictment, or from the date
the defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date last
occurs.” 18 U.S.C. § 3161(c)(1) (2006). The Act provides for
several excludable delays, including those resulting from the
grant of a continuance where the district court finds that “the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial”;
trial on other charges; and the filing of pretrial motions. 18
U.S.C.A. § 3161(h)(1)(B), (D), (7)(A) (West Supp. 2011). If the
defendant’s trial does not begin within seventy days and the
delay is not excludable, the district court “shall” dismiss the
indictment with or without prejudice on motion of the defendant.
18 U.S.C. § 3162(a)(2); United States v. Henry, 538 F.3d 300,
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304 (4th Cir. 2008). The defendant bears the burden of proving
a Speedy Trial Act violation. 18 U.S.C. § 3162(a)(2); United
States v. O’Connor, 656 F.3d 630, 633 (7th Cir. 2011), petition
for cert. filed, __ S. Ct. __ (U.S. Nov. 29, 2011) (No.
11-7625).
We conclude that Nesbitt has not carried his burden of
establishing a Speedy Trial Act violation. The Speedy Trial
clock began running when Nesbitt appeared before a magistrate
judge for arraignment on April 8, 2009. The following day,
Nesbitt filed motions for disclosure of intent to use evidence
of other crimes, for leave to file additional motions, and for
discovery, thereby tolling the clock. See 18 U.S.C.
§ 3161(h)(1)(D). Nesbitt has not produced any evidence that
these motions were disposed of prior to November 10, 2009, when
he filed his motion to suppres, or at anytime thereafter.
Therefore, we hold that Nesbitt has not carried his burden of
showing that any time ran on the clock between his pretrial
filings on April 9, 2009, and the beginning of jury selection on
August 10, 2010. Accordingly, we conclude that the district
court did not err in denying Nesbitt’s motion to dismiss.
We review de novo the legal determinations underlying
a district court’s denial of a Franks hearing and the district
court’s factual findings for clear error. United States v.
Allen, 631 F.3d 164, 171 (4th Cir. 2011). In order to obtain a
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Franks hearing to attack a facially sufficient warrant
affidavit, a defendant must make a substantial preliminary
showing that a false statement critical to a finding of probable
cause was included in the warrant affidavit knowingly and
intentionally or with reckless disregard for the truth. See
Franks, 438 U.S. at 155-56; United States v. Clenney, 631 F.3d
658, 663 (4th Cir. 2011). “This showing must be more than
conclusory and should include affidavits or other evidence to
overcome the presumption of the warrant’s validity.” Clenney,
631 F.3d at 663 (internal quotation marks and alterations
omitted). Nesbitt did not make a substantial preliminary
showing that the affiant lied or omitted information with
reckless disregard for the truth. Accordingly, we conclude that
the district court did not err in denying Nesbitt’s motion for a
Franks hearing.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 45 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010) (abuse of discretion standard of
review applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
[18 U.S.C.] § 3553 [(2006)] for a sentence different than the
one ultimately imposed”). We must begin by reviewing the
sentence for significant procedural error, including such errors
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as “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51.
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence. Id.
(internal quotation marks omitted). The court’s explanation
need not be exhaustive; it must be “sufficient ‘to satisfy the
appellate court that the district court has considered the
parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority.’” United States v.
Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v.
United States, 551 U.S. 338, 356 (2007) (alterations omitted)).
When, as here, the district court imposes a
within-Guidelines sentence, the district court may “provide a
less extensive, while still individualized, explanation.”
United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009).
That explanation, however, must be sufficient to allow for
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“meaningful appellate review” such that we need “not guess at
the district court’s rationale.” Carter, 564 F.3d at 329-30(internal quotation marks omitted).
We conclude that the district court erred in failing
to provide an adequate explanation for its chosen sentence.
During sentencing, the court merely stated that it “calculated
and considered the advisory Sentencing Guidelines and the
relevant statutory sentencing factors contained in 18 United
States Code 3553(a).” The district court chose not to accept
either party’s suggested sentence, instead sentencing in the
middle of the Guidelines range, but it provided very little
indication that it considered the parties’ arguments and had a
reasoned basis for exercising its legal decisionmaking
authority.
The Government argues that any error was harmless.
When this court concludes that the district court committed a
procedural error in sentencing, “the government may avoid
reversal only if it demonstrates 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 sentenced imposed.” United States v.
Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (internal quotation
marks and alterations omitted). Here, because Nesbitt requested
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a sentence at the low end of the Guidelines range based on his
age and health and the district court imposed a different
sentence without any indication that it had considered Nesbitt’s
argument, the Government’s conclusory argument is insufficient
to establish harmless error. Therefore, we must vacate
Nesbitt’s sentence and remand for resentencing.
In accordance with Anders, we have reviewed Nesbitt’s
pro se claims and the record in this case and find that there
are no other meritorious issues for review. We therefore affirm
the convictions, vacate Nesbitt’s sentence, and remand for
resentencing. We deny Nesbitt’s motion to consolidate briefs or
terminate counsel.
This court requires that counsel inform Nesbitt in
writing of the right to petition the Supreme Court of the United
States for further review. If Nesbitt requests that such
petition be filed, but counsel believes that the 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 Nesbitt.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED
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