United States v. David Brackett , 528 F. App'x 306 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4995
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID F. BRACKETT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00059-GMG-DJJ-1)
Submitted: June 10, 2013 Decided: June 12, 2013
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eric S. Black, Berkeley Springs, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Andrew R.
Cogar, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David F. Brackett, Jr., appeals the district court’s
imposition of consecutive 162-month and 120-month sentences
following his convictions for wire fraud, in violation of 18
U.S.C. §§ 1343 and 2 (2006), and money laundering, in violation
of 18 U.S.C. § 1957(a) (2006), respectively. On appeal,
Brackett contends that the district court committed procedural
error by failing to properly apply U.S. Sentencing Guidelines
Manual (USSG) § 5G1.2 (2011), and abused its discretion by
imposing consecutive sentences. Finding no reversible error, we
affirm.
In reviewing a sentence, we must ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range. Gall v. United States, 552 U.S. 38, 51
(2007). In assessing the district court’s application of the
Guidelines, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Layton, 564 F.3d 330, 334 (4th Cir. 2009).
Assuming, without deciding, that the district court
committed procedural error in its application of USSG § 5G1.2
and imposition of consecutive sentences, we conclude that any
error was harmless and does not require reversal on appeal. See
Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity or
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variance that does not affect substantial rights must be
disregarded.”); United States v. Savillon-Matute, 636 F.3d 119,
123-24 (4th Cir. 2011) (permitting “assumed error harmlessness
inquiry”) (internal quotation marks omitted). It is clear from
the record that the district court would have imposed
consecutive sentences regardless of the Guidelines and that the
consecutive sentences were permissible and reasonable under the
circumstances. See Savillon-Matute, 636 F.3d at 123-24(providing requirements for assumed error harmlessness inquiry);
see also 18 U.S.C. § 3584(a), (b) (2006) (requiring court to
“consider, as to each offense for which a term of imprisonment
is being imposed, the factors set forth in section 3553(a)” in
imposing consecutive sentences); United States v. Candelario-
Cajero, 134 F.3d 1246, 1249 (5th Cir. 1998) (finding that
§ 3584(a) permits departure from USSG § 5G1.2 grouping rules).
Thus, we conclude that the court did not abuse its discretion in
imposing consecutive sentences for Brackett’s offenses. See
United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010)
(providing standard of review).
Accordingly, we affirm the district court’s judgment.
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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