United States v. Talbert Dehaven, III

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4415
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TALBERT FOSTER DEHAVEN, III,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:13-cr-00042-GMG-JES-1)
Submitted: October 16, 2014 Decided: October 20, 2014
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender, Kristen
M. Leddy, Research and Writing Specialist, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Talbert Foster DeHaven, III, appeals from the district
court’s judgment imposing a six-month term of imprisonment
following his guilty plea to possession of an imitation United
States Marshal badge, 18 U.S.C. § 701 (2012). He argues that
the district court relied on facts not proved by a preponderance
of the evidence, namely that he was a felon in possession of a
firearm, and that his sentence is substantively unreasonable.
Finding no error, we affirm.
We review a sentence for which there is no applicable
advisory Guidelines provision “under the ‘plainly unreasonable’
standard.” United State v. Finley, 531 F.3d 288, 294 (4th Cir.
2008). Because the maximum sentence is not more than six months
for a Class B misdemeanor such as the conviction here, the
Guidelines are not applicable. See United States v. Johnson,
410 F.3d 137, 150 (4th Cir. 2005); U.S. Sentencing Guidelines
Manual § 1B1.9 (2013).
Under “plainly unreasonable” review, we first
determine whether the sentence imposed is unreasonable,
“tak[ing] a more deferential appellate posture concerning issues
of fact and the exercise of discretion” than when reviewing a
Guidelines sentence. United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007) (internal quotation marks omitted). If the
sentence is unreasonable, we must then determine whether it is
2
plainly so. United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010). “[F]or purposes of determining whether an
unreasonable sentence is plainly unreasonable, plain is
synonymous with clear or, equivalently, obvious.” United States
v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006) (internal quotation
marks and alteration omitted).
After review of the record, we conclude that DeHaven’s
sentence is not unreasonable, much less plainly so. While the
district court initially believed DeHaven possessed a firearm as
a felon, the Government noted that it recovered only a facsimile
firearm and indicated its belief that DeHaven possessed this
fake weapon while carrying the imitation badge. When the
district court explained its sentence, it highlighted DeHaven’s
extensive criminal history, his conduct in this case, his lack
of remorse, and his failure to acknowledge the serious nature of
his conduct. The court explained that it considered DeHaven’s
impersonation of a Marshal, particularly while carrying what
purported to be a firearm, to be very serious and a potential
danger to members of the community.
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
3