United States v. Kevin Frazier , 523 F. App'x 260 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4736
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN LABRICIO FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00113-F-3)
Submitted: May 30, 2013 Decided: June 6, 2013
Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On March 7, 2011, Kevin Labricio Frazier and his
brother robbed a branch of the First South Bank in Greenville,
North Carolina. Frazier pled guilty to armed bank robbery and
aiding and abetting, in violation of 18 U.S.C. §§ 2113(a),
2113(d), and 2 (2006) (Count Three), and using or carrying a
firearm during and in relation to a crime of violence, and
possessing a firearm in furtherance thereof, and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (2006)
(Count Four). The district court sentenced Frazier to forty-six
months’ imprisonment on the bank robbery charge, the top of the
Guidelines range, to be followed by eighty-four months’
imprisonment on the firearm offense, for a total sentence of 130
months in prison. Frazier timely appeals, arguing that the
forty-six-month sentence he received on the armed robbery count
is substantively unreasonable, because it is greater than
necessary to satisfy the purposes of 18 U.S.C. § 3553(a) (2006).
This court reviews a sentence for reasonableness,
applying a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Where, as here, the
defendant does not challenge the procedural reasonableness of
his sentence, we review the sentence only for substantive
reasonableness, applying the abuse-of-discretion standard. Id.;
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). The
2
sentence imposed must be “sufficient, but not greater than
necessary, to comply with the purposes [of sentencing].” 18
U.S.C. § 3553(a). In reviewing a sentence for substantive
reasonableness, we “examine[] the totality of the
circumstances.” United States v. Mendoza-Mendoza, 597 F.3d 212,
216 (4th Cir. 2010). If the sentence is within the properly
calculated Guidelines range, this court applies a presumption on
appeal that the sentence is substantively reasonable. Id. at
216-17. Such a presumption is rebutted only by showing “that
the 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).
Frazier argues that, under the totality of the
circumstances, he should have received a sentence at the bottom
of the Guidelines range on Count Three, primarily relying on his
claim that his brother had a greater role in the robbery and
that the charges against his brother’s co-defendant in a
separate armed robbery were dismissed. * “[D]istrict courts have
extremely broad discretion when determining the weight to be
given each of the § 3553(a) factors.” United States v. Jeffery,
631 F.3d 669, 679 (4th Cir.), cert. denied, 132 S. Ct. 187
*
Frazier was not charged in the February 2, 2011 armed
robbery, which occurred while he was in state custody serving a
sentence on unrelated charges.
3
(2011). In imposing a sentence at the top of the Guidelines
range on Count Three, the district court focused on Frazier’s
risk of recidivism, emphasizing that he committed the robbery
only a week after his release from custody on a state sentence.
We conclude that Frazier has failed to rebut the presumption of
reasonableness accorded his within-Guidelines sentence.
Accordingly, we affirm Frazier’s sentence. 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
4