United States v. Crouch , 402 F. App'x 755 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EMMANUEL CROUCH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00299-JAB-1)
Submitted: October 28, 2010 Decided: November 18, 2010
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. John W. Stone, Jr., Acting United
States Attorney, Michael F. Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Crouch appeals from his conviction and 215-month
sentence following his guilty plea to one count of possession of
firearms by a convicted felon, in violation of 18 U.S.C.
§§ 922(g), 924(e) (2006). Crouch’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that there were no meritorious issues for appeal, but
questioning whether Crouch’s sentence is reasonable. Crouch was
advised of his right to file a pro se supplemental brief but did
not do so. At our direction, the parties filed briefs
addressing the impact of United States v. Carter, 564 F.3d 325(4th Cir. 2009), and United States v. Lynn, 592 F.3d 572 (4th
Cir. 2010). Because our review of the record discloses no
reversible error, we affirm Crouch’s conviction and sentence.
An appellate court reviews a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. First, the court must assess
whether the district court properly calculated the Guidelines
range, considered the § 3553(a) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Gall, 552 U.S. at 49-50; see Lynn, 592 F.3d
at 576 (“[A]n individualized explanation must accompany every
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sentence.”); Carter, 564 F.3d at 330 (same). If the sentence is
procedurally reasonable, the reviewing court must consider 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 [18 U.S.C.] § 3553(a)
[(2006)].” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
Crouch argues that his sentence is procedurally
unreasonable because the district court did not consider the
§ 3553(a) factors and failed to provide an individualized
statement of how the factors applied in his case. Because
Crouch’s counsel “dr[ew] arguments from § 3553 for a sentence
different than the one ultimately imposed,” counsel “alert[ed]
the district court of its responsibility to render an
individualized explanation addressing those arguments,” and a
claim of procedural error has thus been preserved. Therefore,
this court reviews the error under the harmless error standard.
Lynn, 592 F.3d at 579, 581-82. This standard requires that the
Government bear the burden of establishing that the error did
not affect Crouch’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
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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).
We have reviewed the record and find that any error in
this case was harmless, as we do not doubt that the district
court assessed Crouch’s argument in applying the § 3553(a)
factors. See id. at 839. The district court considered the
information contained in Crouch’s presentence report, and
listened to the parties’ statements and arguments. In imposing
Crouch’s sentence, the court stated that it had considered
Crouch’s history and characteristics, as well as the nature and
circumstance of the offense. Moreover, Crouch’s arguments in
favor of a lower sentence, which included hardship to his family
and a difficult upbringing, were weak. Because it appears that
the district court considered Crouch’s argument for a lower
sentence, and in light of the weakness of that argument, the
lack of a detailed individualized explanation for the rejection
of Crouch’s argument does not impair our ability to review the
sentence. Thus, any procedural error was harmless.
Having determined that there is no reversible
procedural error, we consider the substantive reasonableness of
the sentence, taking into account the totality of the
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circumstances. Gall, 552 U.S. at 51. Because Crouch’s sentence
is within the properly calculated Guidelines range, we presume
on appeal that it is substantively reasonable. United States v.
Go, 517 F.3d 216, 218 (4th Cir. 2008). The 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). Crouch has not made such a showing.
Accordingly, we hold that Crouch’s sentence is procedurally and
substantially reasonable.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Crouch, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Crouch 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 thereof was served on Crouch. 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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