United States v. Harris ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4778
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
COURTNEY HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:09-cr-00002-jpj-pms-1)
Submitted: July 20, 2010 Decided: August 6, 2010
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Debbie H.
Stevens, Special Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Courtney Harris, a federal inmate, pleaded guilty
without a plea agreement to ten counts of indecent exposure, in
violation of 18 U.S.C. § 13 (2006) and Va. Code Ann. § 18.2-387
(2009). The district court calculated Harris’ advisory
Guidelines range at 24 to 30 months’ imprisonment. See U.S.
Sentencing Guidelines Manual (2008). The Government moved under
18 U.S.C. § 3553(a) (2006) for an upward variance, and the
district court granted the Government’s motion and sentenced
Harris to 60 months’ imprisonment. Harris appeals, asserting
three grounds to vacate his sentence: first, that the district
court failed to specify whether it was imposing an upward
variance or an upward departure; second, that the court failed
to adequately explain its rationale for imposing the sentence;
and third, that the sentence is substantively unreasonable.
Finding no error, we affirm.
This court reviews the district court’s sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of a sentence. Id. at 51. In
determining procedural reasonableness, we first assess whether
the district court properly calculated the defendant’s advisory
2
Guidelines range. Id. at 49, 51. We then consider whether the
district court treated the Guidelines as mandatory, failed to
consider the 18 U.S.C. § 3553(a) factors and any arguments
presented by the parties, selected a sentence based on “clearly
erroneous facts,” or failed to explain sufficiently the selected
sentence. Id. at 50-51; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007). We also review whether the district court
made “an individualized assessment based on the facts
presented.” Gall, 552 U.S. at 50; see United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the
“individualized assessment need not be elaborate or
lengthy, . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review” (internal quotation marks omitted)).
When reviewing for substantive reasonableness, we
“take into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Gall,
552 U.S. at 51. We “may consider the extent of the deviation
[from the recommended Guidelines range], but must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id.;
see United States v. Whorley, 550 F.3d 326, 342-43 (4th Cir.
2008), cert. denied, 130 S. Ct. 1052 (2010). Even if we would
have imposed a different sentence, this fact alone will not
3
justify vacatur of the district court’s sentence. Whorley,
550 F.3d at 342.
Harris first challenges his sentence on the ground
that the district court failed to specify whether the 60-month
sentence resulted from an upward variance or an upward
departure. Whether the district court has imposed a departure
or variance from the suggested Guidelines range has “real
consequences for an appellate court’s review” of the sentence
imposed. United States v. Brown, 578 F.3d 221, 226 (3d Cir.
2009). Indeed, the “permissible factors justifying traditional
departures differ from -- and are more limited than -- the
factors a [district] court may look to in order to justify
a . . . variance.” United States v. Hampton, 441 F.3d 284, 288
n.2 (4th Cir. 2006). As departures are thus “subject to
different requirements than variances,” United States v. Floyd,
499 F.3d 308, 311 (3d Cir. 2007), it is important for district
courts to “articulate whether a sentence is a departure or a
variance from an advisory Guidelines range,” Brown, 578 F.3d at
226 (internal quotation marks omitted). Because Harris did not
raise this issue in the district court, our review is for plain
error. See Puckett v. United States, 129 S. Ct. 1423, 1428-29
(2009).
We conclude that Harris has failed to establish
procedural error, much less plain procedural error, in this
4
regard. The Government sought an upward variance from the
Guidelines range based on certain § 3553(a) factors, and the
district court granted the Government’s motion, stating in its
written order that it varied above the Guidelines range based on
relevant § 3553(a) factors. Although the district court
misspoke at the sentencing hearing, erroneously characterizing
its sentence as an upward departure, it is clear from the record
that the court imposed a variant sentence. *
Harris also claims that the district court failed to
explain its decision to impose the 60-month variant sentence and
that the sentence is substantively unreasonable. We disagree.
The district court heard argument from Harris’s counsel on the
appropriate sentence, allowed Harris an opportunity to allocute,
and thoroughly considered the § 3553(a) factors relevant to
Harris in imposing the 60-month sentence. We have reviewed the
record and conclude that the district court adequately explained
*
Moreover, even if we were to assume that the district
court’s oral mischaracterization of the sentence somehow
constituted an obvious error, Harris still bears the burden of
showing that such error had a prejudicial effect on the sentence
imposed. See Puckett, 129 S. Ct. at 1429, 1433 n.4. In the
sentencing context, an error is prejudicial if the defendant can
show “that, absent the error, a different sentence might have
been imposed.” United States v. Hernandez, 603 F.3d 267, 273
(4th Cir. 2010). Harris fails to make this showing, as he does
not suggest that the district court’s mischaracterization had
any effect on the sentence imposed or that, but for it, a
different sentence might have been imposed.
5
its rationale for imposing the variant sentence, that the
sentence was “selected pursuant to a reasoned process in
accordance with law,” and that the reasons relied upon by the
district court are plausible and justify the sentence imposed.
Pauley, 511 F.3d at 473-76; see Carter, 564 F.3d at 330.
Although Harris argues that a 60-month prison sentence is
“unreasonably long,” we afford “due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 552 U.S. at 51.
Thus, we conclude that the district court did not
abuse its discretion in sentencing Harris. We therefore affirm
the district court’s judgment. 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
6