United States v. James Bullard ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RAY BULLARD,
Defendant - Appellant.
No. 20-4001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY BULLARD,
Defendant - Appellant.
Appeals from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:13-cr-00330-NCT-1; 1:13-
cr-00330-NCT-2)
Submitted: August 28, 2020 Decided: September 17, 2020
Before KING and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, Winston-Salem, North Carolina; Louis C. Allen, Federal Public
Defender, Kathleen A. Gleason, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellants. JoAnna
Gibson McFadden, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following their guilty pleas to one count each of kidnapping, in violation of
18 U.S.C. §§ 2, 1201(a)(1) (count 4), brandishing firearms during and in relation to the
crime of violence of kidnapping, in violation of 18 U.S.C. §§ 2, 924(c)(2)(A)(ii) (count 5),
and possession of stolen firearms, in violation of 18 U.S.C. §§ 2, 922(j) (count 6), the
district court sentenced James Ray Bullard and Danny Bullard to 175 months’
imprisonment and 188 months’ imprisonment, respectively, and five years each of
supervised release. The district court later granted James’ and Danny’s 28 U.S.C. § 2255motions, vacated their convictions on count 5, and ordered that they be resentenced. At
resentencing in November 2019, the district court calculated James’ sentencing range
under the U.S. Sentencing Guidelines Manual (2018) at 168 to 210 months’ imprisonment
and Danny’s sentencing range under the Guidelines at 188 to 235 months’ imprisonment.
The court sentenced James to 151 months’ imprisonment on count 4, a concurrent term of
120 months’ imprisonment on count 6, and to concurrent supervised release terms of 5 and
3 years. The court sentenced Danny to 168 months’ imprisonment on count 4, a concurrent
term of 120 months’ imprisonment on count 6, and to concurrent supervised release terms
of 5 and 3 years.
On appeal from the second amended criminal judgments imposing these terms,
counsel have filed a joint brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but raising as issues for review
whether the 151 and 168-month prison terms are substantively reasonable and whether the
district court erred in imposing warrantless searches as a special condition of supervised
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release. The Government declined to file a brief. James and Danny filed a pro se
supplemental brief raising as an issue whether trial counsel rendered ineffective assistance
in connection with resentencing. We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,
or significantly outside the Guidelines range.’” United States v. Nance, 957 F.3d 204, 212
(4th Cir. 2020) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). In conducting this
review, we first ensure that the district court did not commit any significant procedural
error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
United States v. Lymas, 781 F.3d 106, 111-12 (4th Cir. 2015) (quoting Gall, 552 U.S. at
51); see United States v. Provance, 944 F.3d 213, 217-19 (4th Cir. 2019).
If the sentence is procedurally sound, we then review it for substantive
reasonableness. Gall, 552 U.S. at 51. Substantive reasonableness review “takes into
account the totality of the circumstances to determine whether the sentencing court abused
its discretion in concluding that the sentence it chose satisfied the standards set forth in
§ 3553(a).” Nance, 957 F.3d at 212 (internal quotation marks omitted). Any sentence that
is within or below a properly calculated Guidelines range is presumptively substantively
reasonable, and Appellants bear the burden of demonstrating that the sentence is
unreasonable when measured against the § 3553(a) factors. United States v. White,
810 F.3d 212, 230 (4th Cir. 2016).
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After review of the record, we conclude that the district court properly calculated
the advisory Guidelines ranges, gave the parties adequate opportunities to argue for an
appropriate sentence, properly heard James’ and Danny’s allocutions, considered the
§ 3553(a) factors, and sufficiently explained the chosen sentences. Because James and
Danny have failed to rebut the presumption of reasonableness that we afford to their
below-Guidelines-range sentences, we conclude that the district court did not abuse its
discretion in imposing the 151 and 168-month prison terms.
Counsel also question whether the district court erred in imposing, as a special
condition of supervised release, that James and Danny submit themselves, their “residence,
office, vehicle, or any property under [their] control to a warrantless search” to be
conducted by the probation officer at “a reasonable time and in a reasonable manner, based
upon reasonable suspicion of contraband or evidence of a violation of a condition of
release.” Because James and Danny did not object to this special condition at resentencing,
we review only for plain error. See United States v. Rodriguez-Rodriguez, 441 F.3d 767,
772 (9th Cir. 2006).
Although district courts are “afforded broad latitude to impose conditions on
supervised release,” special conditions of release must be “reasonably related” to the
sentencing factors set forth in 18 U.S.C. § 3583(d)(1). United States v. Douglas, 850 F.3d
660, 663 (4th Cir. 2017) (internal quotation marks omitted). Those factors include: “the
nature and circumstances of the offense and the history and characteristics of the
defendant;” the need for adequate deterrence; the protection of the public from further
crimes; and providing the defendant training or treatment. 18 U.S.C. § 3583(d)(1) (citing
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id. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). The special conditions imposed also must
be consistent with policy statements issued by the Sentencing Commission and must
involve “no greater deprivation of liberty than is reasonably necessary” to achieve the goals
of supervised release. Douglas, 850 F.3d at 663 (citing 18 U.S.C. § 3583(d)(2), (d)(3)).
After review of the record, we conclude that the condition is reasonable, given James’ and
Danny’s backgrounds and the need for the district court to protect the public. James and
Danny thus fail to show plain error.
James and Danny question whether trial counsel rendered ineffective assistance in
connection with resentencing. To prevail on a claim of ineffective assistance of counsel, a
defendant must show (1) “that counsel’s performance was deficient,” and (2) “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). However, we may address a claim of ineffective assistance on direct appeal
only if the lawyer’s ineffectiveness conclusively appears on the face of the record. United
States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016). After review, we conclude that
ineffective assistance by trial counsel does not conclusively appear on the face of this
record. We therefore decline to address these claims.
Finally, in accordance with Anders, we have reviewed the remainder of the record
and have found no meritorious issues for appeal. We therefore affirm the second amended
criminal judgments. This court requires that counsel inform James and Danny, in writing,
of the right to petition the Supreme Court of the United States for further review. If James
or Danny request that a petition be filed, but counsel believes that such a petition would be
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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 James or Danny.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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