United States v. Brown ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALONZO NEIL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00295-DCN-3)
Submitted: March 24, 2011 Decided: April 14, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, William J. Watkins, Jr., Alston C. Badger,
Assistant United States Attorneys, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a trial, Alonzo Neil Brown was convicted of one
count of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e)(1) (2006). He was
acquitted of charges relating to a bank robbery. On appeal,
Brown’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), certifying there are no meritorious issues
for appeal but raising for the court’s consideration whether the
evidence was sufficient to support the conviction and whether
the sentence was reasonable. Brown was given the opportunity to
file a pro se supplemental brief but declined. After reviewing
the record, we affirm the district court’s judgment.
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
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omitted). The court considers both circumstantial and direct
evidence, drawing all reasonable inferences from such evidence
in the government’s favor. United States v. Harvey, 532 F.3d
326, 333 (4th Cir. 2008).
We conclude there was more than sufficient evidence to
support Brown’s conviction. In fact, at trial, Brown admitted
possessing a firearm. He only stood trial to challenge the
charges that concerned the bank robbery.
This court reviews a district court’s sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007); see also United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). This review
requires appellate consideration of both the procedural and
substantive reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court considers
whether the district court properly calculated the defendant’s
advisory 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.
Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an individualized assessment based on the particular
facts of the case before it. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
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Finally, this court reviews 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). If the
sentence imposed is within the appropriate Guidelines range, on
appeal it is presumptively reasonable. United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008). This presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
We conclude there was no error with respect to the
calculation of the advisory Guidelines sentence. Insofar as
this court noticed a possible error with respect to the district
court’s obligation to provide an individualized assessment
justifying the sentence, see United States v. Lynn, 592 F.3d
572, 584 (4th Cir. 2010), and provided the parties an
opportunity to brief the issue, we conclude that any error was
harmless.
Because Brown preserved the error, we employ a
harmless error review to determine whether any procedural error
by the district court warrants reversal. Id. at 579. This
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standard requires that the Government bear the burden of
establishing that the error did not affect Brown’s substantial
rights. United States v. Robinson, 460 F.3d 550, 557 (4th Cir.
2006). Specifically, the Government “may avoid reversal only if
it demonstrates that the error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed.” United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) (alterations and internal quotation marks
omitted).
In this case, there was evidence tending to show that
Brown participated in the robbery and that after the robbery,
Brown posed a potential threat to officer and civilian safety.
Also, the record demonstrates that the district court considered
Brown’s arguments in support of his request for a low-end
guideline sentence. Thus, we conclude that even if the district
court failed to provide an adequate explanation for Brown’s
sentence, the court undertook the proper analysis and further
elaboration would not have affected the sentence imposed. See
id. at 838.
In accordance with Anders, we have reviewed the entire
record for meritorious issues, and with the exception of the
sentencing issue noted above, we have found none. We therefore
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affirm. This court requires that counsel inform the client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy was served on the client. 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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