United States v. Jerry Hairston, Jr. , 477 F. App'x 978 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4852
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERRY LEE HAIRSTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00360-WO-1)
Submitted: April 26, 2012 Decided: April 30, 2012
Before GREGORY, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ferris Ridgely Bond, BOND & NORMAN, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lee Hairston, Jr., appeals from his 67-month
sentence entered pursuant to his guilty plea to possession of a
firearm by a convicted felon. After calculating a Sentencing
Guidelines range of 84-105 months, the district court granted
the Government’s motion and Hairston’s request for a twenty
percent substantial assistance departure from the low end of the
Guidelines range. Hairston now asserts for the first time that
the district court erred in failing to consider his mental and
emotional issues and in imposing a longer sentence than Hairston
would have received in a district with a fast-track program. We
affirm.
In determining the procedural reasonableness of a
sentence, we must assess inter alia whether the district court
failed to consider either the 18 U.S.C. § 3553(a) (2006) factors
or any arguments presented by the parties. United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). Despite
Hairston’s allegations to the contrary, the record reveals that
the district court considered Hairston’s mental and emotional
state, recommending psychological testing and requiring mental
health treatment as a supervised release condition. The court
appropriately weighed these factors against Hairston’s criminal
history and related concerns, and as such, Hairston’s sentence
was procedurally reasonable.
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Next, Hairston alleges that his sentence was greater
than necessary when compared to sentences for defendants
participating in fast-track programs and, thus, substantively
unreasonable. * If the sentence is within the appropriate
Guidelines range, this court applies a presumption on appeal
that the sentence is reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the § 3553(a)
factors.” Montes–Pineda, 445 F.3d at 379. Here, after weighing
the appropriate factors, the court concluded that, despite the
fact that a longer sentence could be justified, a departure
sentence starting from the low end of the Guidelines range was
*
The fast-track program allows federal prosecutors to offer
shorter sentences to defendants who plead guilty at an early
stage in the prosecution and agree to waive appeal and other
rights. See U.S. Sentencing Guidelines Manual § 5K3.1 (2010).
Hairston asserts that the lack of a fast-track program is an
appropriate ground on which to vary from a Guidelines sentence.
Compare United States v. Jiminez-Perez, 659 F.3d 704, 710-11
(8th Cir. 2011) (disparity resulting from absence of fast-track
program not excluded as sentencing factor); with United
States v. Perez-Pena, 453 F.3d 236, 244 (4th Cir. 2006) (holding
that the lack of a fast-track program is not a ground for a
downward departure). Because Hairston did not raise this issue
below, it is reviewed for plain error. See United States v.
Strickland, 245 F.3d 368, 379 (4th Cir. 2001). Assuming without
deciding that such a factor is an appropriate basis for a
variance sentence, the court did not state that it lacked the
authority to vary, and the court was not required to vary. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.
2009). As such, Hairston cannot show plain error.
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appropriate. Given our review of the record as a whole, we hold
that Hairston has failed to overcome the appellate presumption
that that his Guidelines sentence was reasonable.
Accordingly, we affirm Hairston’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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