United States v. Lloyd Carr , 590 F. App'x 245 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LLOYD B. CARR, a/k/a Lloyd Carr,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Thomas E. Johnston,
District Judge. (6:12-cr-00210-1)
Submitted: January 14, 2015 Decided: January 16, 2015
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dorwin J. Wolfe, WOLFE LAW FIRM, Elkins, West Virginia, for
Appellant. R. Booth Goodwin II, United States Attorney, Blaire
L. Malkin, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lloyd B. Carr appeals the seventy-five month, within-
Guidelines sentence imposed following his guilty plea to mail
fraud, in violation of 18 U.S.C. § 1341 (2012). He argues that
the district court clearly erred when it refused to apply a
reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1 and that the sentence is substantively
unreasonable. We affirm.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We first ensure that the
district court committed no “‘significant procedural error,’”
including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors, and inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010)
(quoting Gall, 552 U.S. at 51).
Carr first challenges the district court’s decision to
remove the three-level reduction for acceptance of
responsibility based upon his statements during allocution.
Whether a defendant merits an acceptance of responsibility
adjustment is a factual issue and thus reviewed for clear error.
United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). “To
earn the reduction, a defendant must prove to the court by a
2
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” Id. (internal quotation marks omitted). “[T]he
sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility, and thus . . . the
determination of the sentencing judge is entitled to great
deference on review.” Elliott v. United States, 332 F.3d 753,
761 (4th Cir. 2003) (internal quotation marks and brackets
omitted). We may reverse the district court’s finding only when
“left with the definite and firm conviction that a mistake has
been committed.” Dugger, 485 F.3d at 239 (internal quotation
marks omitted).
We discern no clear error in the district court’s
finding that Carr failed to accept responsibility. While Carr
pleaded guilty, his statements during allocution reflected a
frivolous denial of relevant conduct. He denied any intent to
harm his victims and stated his crimes were not deliberate. As
the district court noted, these statements were consistent with
his conduct during the investigation of the crime and subsequent
to his guilty plea.
Carr next argues that his sentence is substantively
unreasonable. We assess substantive reasonableness by
considering the totality of the circumstances. “Any sentence
that is within or below a properly calculated Guidelines range
3
is presumptively [substantively] reasonable. Such a presumption
can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.) (citation omitted), cert. denied, 135 S. Ct. 421 (2014).
Carr has failed to rebut the presumed reasonableness
of his within-Guidelines sentence. The district court assessed
the totality of the circumstances, including the applicable
§ 3553(a) factors, in rejecting both Carr’s and the Government’s
requests for a variant sentence. The court concluded that a
within-Guidelines sentence was necessary based on the nature of
the offense and would deter Carr from committing similar crimes
in the future.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
4