United States v. Levesque , 232 F. App'x 364 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4915
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM EDWARD LEVESQUE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00358)
Submitted: May 9, 2007 Decided: July 12, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Kurt W. Meyers, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Edward Levesque pled guilty to two counts of
possession of a firearm after having been convicted of a felony in
violation of 18 U.S.C. § 922(g)(1). The first offense occurred on
August 13, 2005, and involved an incident in which Levesque shot a
firearm into the unoccupied vehicle of an acquaintance. The second
offense occurred on August 24, 2005, and involved an incident in
which Levesque shot and killed a teenage girl while mishandling a
firearm at a party. After grouping the offenses and
cross-referencing to the sentencing guidelines range for second
degree murder pursuant to § 2K2.1(c)(1)(B), the district court
sentenced Levesque to two consecutive statutory maximum terms of
120 months in prison. The district court also alternatively
determined that it would vary upward to reach a 240-month sentence
if this court disagreed with its guidelines analysis. Levesque
timely appealed. Levesque has filed a motion to supplement the
joint appendix and amend his informal brief.
Levesque first argues that this court has effectively
implemented a mandatory sentencing system by presuming that a
sentence outside the guidelines range is unreasonable and as such,
he was sentenced in violation of United States v. Booker, 543 U.S.
220 (2005). We conclude this claim is without merit because, while
a sentence within the guidelines range is presumptively reasonable,
we have unequivocally recognized that a sentence outside the
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guideline range is not presumptively unreasonable. See United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006).
Levesque next argues the district court violated the
Confrontation Clause by increasing his sentence based on hearsay
testimony presented at his sentencing hearing in violation of
Crawford v. Washington, 541 U.S. 36 (2004). We conclude that a
sentencing court may consider any reliable and relevant
information, including hearsay, United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995), even after Crawford. See, e.g. United
States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005); United
States v. Roche, 415 F.3d 614, 618 (7th Cir.), cert. denied, 546
U.S. 1024 (2005).
Levesque also argues the district court unreasonably
sentenced him under the sentencing guidelines for second degree
murder instead of those relevant to involuntary manslaughter
pursuant to the cross-referencing provisions of 2K2.1. Section
2K2.1 of the U.S. Sentencing Guidelines Manual provides a
cross-reference to the sentencing guideline for second-degree
murder if the defendant causes the death of another with malice
aforethought and is not specifically enumerated as a first degree
offense. See 18 U.S.C. § 1111(a). We conclude that Levesque’s act
of causing the death of another by mishandling his firearm after
previously shooting a different individual by discharging his
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firearm in a reckless manner represents conduct that is “reckless
and wanton and a gross deviation from a reasonable standard of
care, of such a nature that a jury [would be] warranted in
inferring that defendant was aware of a serious risk of death or
serious bodily harm.” See United States v. Williams, 342 F.3d 350,
356 (4th Cir. 2003) (quotation marks and citations omitted).
Consequently, we conclude the district court’s cross-reference to
the sentencing guideline for second-degree murder was proper.
Levesque next argues that the district court erroneously
sentenced him to consecutive sentences based on an improper
application of USSG § 5G1.2(d) (2005). Because we conclude the
district court properly sentenced him pursuant to the sentencing
guideline for second-degree murder, we decline to address this
claim.
Finally, Levesque argues the district court’s suggested
alternative sentence was unreasonable. Because we find the
district court correctly applied the sentencing guidelines in
determining his sentence, it is not necessary to address this
claim.
Accordingly, we grant Levesque’s motion to supplement the
joint appendix and amend his informal brief and affirm Levesque’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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