United States v. Andre Harvey ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5076
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE LEMANE HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (4:11-cr-00026-BO-1)
Submitted: May 30, 2012 Decided: July 2, 2012
Before SHEDD and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney, Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Lemane Harvey pleaded guilty to possession of a
firearm after having previously been convicted of a crime
punishable by a term exceeding one year of imprisonment, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Harvey to ninety-two months of imprisonment, and he
appeals. Finding no error, we affirm.
On appeal, Harvey argues that the sentence is
procedurally and substantively unreasonable. Specifically,
Harvey argues that the district court failed to adequately
explain the sentence and respond to the parties’ arguments, and
failed to take his history and characteristics and assistance to
authorities sufficiently into account in fashioning the
sentence.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009). In so doing, we examine the sentence for
“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. We will presume on
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appeal that a sentence within a properly calculated advisory
Guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
U.S. 338, 346-56 (2007) (permitting presumption of
reasonableness for within-Guidelines sentence).
Moreover, a district court must conduct an
“individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the Guidelines range. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). In addition, “[w]here [the parties]
present[] nonfrivolous reasons for imposing a . . . sentence
[outside the advisory Guidelines range,] . . . a district judge
should address the party’s arguments and explain why he has
rejected those arguments.” Id. at 328 (internal quotation marks
and citation omitted). We have thoroughly reviewed the record
and conclude that the court responded to the parties’ arguments
regarding the sentence and adequately explained its reasons for
choosing the sentence imposed. In addition, we conclude that
Harvey has failed to overcome the presumption of reasonableness
applied to his within-Guidelines sentence.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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