United States v. Clemons ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4484
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD DEWAYNE CLEMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:08-cr-00014-D-1)
Submitted: June 25, 2010 Decided: July 20, 2010
Before KING, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Felice McConnell
Corpening, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Dewayne Clemons pled guilty to unlawful
possession of firearms and ammunition by a convicted felon, and
was sentenced to a term of ten years imprisonment, the statutory
maximum and the only possible guideline sentence. * Clemons
contends that his sentence is procedurally unreasonable because
the district court failed to explain why it did not grant him a
downward variance for having pled guilty and accepted
responsibility. He contends that the sentence is substantively
unreasonable because the court rejected his request for a
variance on that ground. We affirm.
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.The appeals court must assess whether the district court
properly calculated the guidelines range, considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-50; see United States v. Lynn, 592
*
The recommended advisory guideline range was 120-150
months, but because the statutory maximum sentence was ten
years, the guideline range was limited to 120 months. See U.S.
Sentencing Guidelines Manual § 5G1.1(c)(1) (2008).
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F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009). An extensive explanation is not
required as long as the appellate court is satisfied “‘that [the
district court] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.’” United States v. Engle, 592 F.3d 495, 500 (4th
Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)), petition for cert. filed, June 10, 2010. Finally, we
review the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
Here, counsel urged the court to sentence Clemons
below the advisory guidelines range, but without addressing with
any specificity why a guilty plea and acceptance of
responsibility constituted adequate grounds for a variance. The
court declined to vary, stating at the beginning of its findings
that it had considered Clemons’ argument. The court discussed
the nature and circumstances of the offense, noting that Clemons
had entered a guilty plea to unlawful possession of a firearm,
but that the firearm offense was connected to his drug dealing.
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Clemons had not acknowledged that fact, and counsel had argued
that the two crimes were only loosely connected. The court
discussed Clemons’ history of both mental health problems and
prior felonies. The court took issue with Clemons’ statement
that he had been “kidnapped” when he was arrested. The court
stated that Clemons’ offense was serious and required a sentence
that promoted respect for the law and provided just punishment,
deterrence, and protection for the public.
This record belies Clemons’ contention that the
district court committed significant procedural error by failing
to address specifically counsel’s brief mention of Clemons’
guilty plea and acceptance of responsibility during his argument
for a variance. The court did note Clemons’ guilty plea.
Although the court did not specifically mention Clemons’
acceptance of responsibility, the court impliedly addressed its
minimal nature by admonishing Clemons that he had been arrested
for committing a serious offense, rather than being kidnapped,
that the guns were connected to drug dealing, rather than
possessed solely for protection, as Clemons alleged, and that
Clemons should not again seek to justify possessing firearms
when he completed his prison term.
With respect to the substantive reasonableness of
Clemons’ sentence, we “may presume that a sentence within the
properly calculated Guideline range is reasonable.” United
4
States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). Because the
120-month sentence was the only possible sentence within the
guideline range and was also the statutory maximum of ten years
imprisonment, we conclude that the sentence imposed by the
district court is reasonable. Moreover, on appeal, Clemons has
not presented evidence to rebut the presumption of
reasonableness. See Rita, 551 U.S. at 347-56.
We therefore affirm the sentence imposed by the
district court. 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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