United States v. Demirion Barnett ( 2024 )


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  • USCA4 Appeal: 23-4702      Doc: 32         Filed: 11/18/2024     Pg: 1 of 5
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 23-4702
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DEMIRION KEZIAH BARNETT,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern District of North Carolina, at
    Wilmington. Richard E. Myers, II, Chief District Judge. (7:23-cr-00026-M-BM-1)
    Submitted: November 14, 2024                                Decided: November 18, 2024
    Before THACKER and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    ON BRIEF: Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC,
    Warrenton, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney,
    David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant
    United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
    North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    USCA4 Appeal: 23-4702       Doc: 32         Filed: 11/18/2024      Pg: 2 of 5
    PER CURIAM:
    Demirion Keziah Barnett appeals the 100-month sentence imposed by the district
    court following his guilty plea to possession of a firearm and ammunition after having been
    convicted of a crime punishable by imprisonment for a term exceeding one year, in
    violation of 
    18 U.S.C. §§ 922
    (g)(1), 924(a)(8). On appeal, Barnett contends that the district
    court erred in calculating his advisory Sentencing Guidelines range by applying a two-level
    enhancement under U.S. Sentencing Guidelines Manual § 3C1.1 (2023), for obstruction of
    justice based on the court’s finding that, after Barnett was arrested, he called another person
    from jail and instructed that person to create a false affidavit claiming ownership of certain
    firearms that law enforcement had attributed to Barnett. Barnett also asserts that his
    100-month sentence is substantively unreasonable because the district court created an
    unwarranted sentencing disparity between him and other defendants sentenced in the
    Eastern District of North Carolina when it considered his juvenile criminal history and
    scored two of Barnett’s juvenile adjudications in determining his criminal history category.
    See 
    18 U.S.C. § 3553
    (a)(6). For the reasons stated below, we affirm.
    Rather than review the merits of Barnett’s challenge to the calculation of his
    Guidelines range, “we may proceed directly to an assumed error harmlessness inquiry.”
    United States v. Gomez-Jimenez, 
    750 F.3d 370
    , 382 (4th Cir. 2014) (internal quotation
    marks omitted).      “To apply this assumed error harmlessness inquiry we require
    (1) knowledge that the district court would have reached the same result even if it had
    decided the [G]uidelines issue the other way and (2) a determination that the sentence
    would be [substantively] reasonable even if the [G]uidelines issue had been decided in the
    2
    USCA4 Appeal: 23-4702       Doc: 32          Filed: 11/18/2024      Pg: 3 of 5
    defendant’s favor.” United States v. McDonald, 
    850 F.3d 640
    , 643 (4th Cir. 2017) (internal
    quotation marks omitted); see United States v. Shivers, 
    56 F.4th 320
    , 327 (4th Cir. 2022).
    An error will be deemed harmless only when we are “certain” that these inquiries are met.
    United States v. Gomez, 
    690 F.3d 194
    , 203 (4th Cir. 2012).
    Here, the district court stated during the sentencing hearing that it would have
    imposed the same 100-month sentence even if it had miscalculated the Guidelines range.
    We thus conclude that the first requirement of the assumed error harmlessness inquiry is
    satisfied. See Gomez-Jimenez, 750 F.3d at 383.
    Next, we must assess whether Barnett’s sentence would be substantively reasonable
    even if the district court had sustained his objection to the two-level enhancement for
    obstruction of justice. Had the district court done so, Barnett’s Guidelines range would
    have been 84 to 105 months’ imprisonment rather than 100 to 125 months’ imprisonment.
    We are satisfied that the 100-month sentence imposed by the district court is
    substantively reasonable even under an assumed Guidelines range of 84 to 105 months. 1
    Indeed, the district court adequately explained why a 100-month sentence was necessary
    using the 
    18 U.S.C. § 3553
    (a) factors. See United States v. Mendoza-Mendoza, 
    597 F.3d 212
    , 216 (4th Cir. 2010) (explaining that substantive reasonableness review requires an
    examination of “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
    1
    Barnett’s 100-month sentence is within the Guidelines range that he asserts is
    proper. See United States v. Louthian, 
    756 F.3d 295
    , 306 (4th Cir. 2014) (recognizing that
    within-Guidelines-range sentence is presumptively substantively reasonable).
    3
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    in § 3553(a)”). In particular, the district court emphasized that Barnett had a significant
    criminal history despite his young age and acknowledged that Barnett was serving a term
    of state probation for assault with a deadly weapon with intent to kill when he committed
    the instant offense. Relatedly, the district court explained that consideration of Barnett’s
    juvenile criminal history was proper because that history reflected Barnett’s pattern of
    illegally possessing and using firearms, rendering his possession of a firearm here even
    more serious and dangerous. Finally, the district court determined that a sentence of 100
    months would promote respect for the law, provide just punishment for the offense, protect
    the public from any future crimes Barnett might commit, and afford adequate deterrence.
    Because Barnett’s 100-month sentence is supported by the district court’s consideration of
    the § 3553(a) factors, we conclude that the sentence is substantively reasonable. 2
    2
    In making his substantive reasonableness argument, Barnett asserts that the district
    court did not adequately consider his arguments for a lower sentence. That assertion
    sounds in procedural reasonableness, not substantive reasonableness. See United States v.
    Claybrooks, 
    90 F.4th 248
    , 256-57 (4th Cir. 2024) (“A sentence is procedurally
    unreasonable if the district court . . . fail[s] to address the defendant’s nonfrivolous
    arguments.” (internal quotation marks omitted)). In any event, Barnett identifies no
    argument for a lower sentence that the district court did not address. See Grayson O Co. v.
    Agadir Int’l LLC, 
    856 F.3d 307
    , 316 (4th Cir. 2017) (“A party waives an argument by
    failing to present it in its opening brief or by failing to develop its argument—even if its
    brief takes a passing shot at the issue.” (alterations and internal quotation marks omitted)).
    Moreover, at the end of the sentencing hearing, the district court asked defense counsel
    whether it had failed to address any of counsel’s significant arguments for a lower sentence,
    and counsel responded in the negative. See United States v. Wilcher, 
    91 F.4th 864
    , 871
    (7th Cir. 2024) (“We have held . . . that if a district court asks a defendant whether it has
    addressed his main arguments in mitigation, a defendant’s affirmative response can waive
    an appellate argument to the contrary.”).
    4
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    For those reasons, we are satisfied that any Guidelines calculation error in these
    proceedings was harmless, and we reject Barnett’s challenge to the substantive
    reasonableness of his sentence. See McDonald, 
    850 F.3d at 645
    . Accordingly, we affirm
    the district court’s judgment. 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
    5
    

Document Info

Docket Number: 23-4702

Filed Date: 11/18/2024

Precedential Status: Non-Precedential

Modified Date: 11/19/2024