United States v. Christopher Lowery

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4253
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER MICHAEL LOWERY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:03-cr-00105-FL-1)
Submitted: December 18, 2013 Decided: January 13, 2014
Before MOTZ, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In February 2004, Christopher Michael Lowery pled guilty,
pursuant to a plea agreement, to one count of being a felon in
possession of a firearm, 18 U.S.C. § 922(g). Pursuant to the
plea agreement, the Government dismissed a count of possessing a
stolen firearm, 18 U.S.C. § 922(j). The district court
sentenced Lowery on June 23, 2004, to 195 months’ imprisonment
and five years of supervised release. This court granted the
Government’s motion to dismiss Lowery’s appeal. United
States v. Lowery, No. 04-4524 (4th Cir. Oct. 6, 2005)
(unpublished order).
In 2013, the district court granted Lowery’s motion to
vacate pursuant to 28 U.S.C. § 2255 (2012), which asserted that
he was actually innocent of being a felon in possession of a
firearm under our decision in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc). Accordingly, the district court
vacated Lowery’s felon-in-possession-of-a-firearm conviction.
But Lowery agreed to the reinstatement of the possessing-a-
stolen-firearm charge and pled guilty to that less serious
offense.
The district court adopted a sentencing range of forty-one
to fifty-one months’ imprisonment. The Government moved for an
upward departure pursuant to Section 4A1.3 of the Sentencing
Guidelines on the ground that Lowery’s criminal history
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underrepresented the seriousness of his criminal conduct and
likelihood of recidivism. The district court granted the
Government’s motion for an upward departure and sentenced Lowery
to time already served and three years of supervised release.
Lowery noted this timely appeal.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in imposing a term of supervised release
without considering the excess time Lowery spent in custody.
Lowery was advised of his right to file a pro se supplemental
brief, but did not file one. The Government also declined to
file a brief.
I.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir. 2012)
(quotation marks omitted). In evaluating procedural
reasonableness, we consider whether the district court properly
calculated the defendant’s advisory Guidelines range, gave the
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parties an opportunity to argue for an appropriate sentence,
considered the 18 U.S.C. § 3553(a) factors, selected a sentence
supported by the record, and sufficiently explained the selected
sentence. Gall, 552 U.S. at 49-51. We give due deference to
the sentencing court’s decision to depart from the Guidelines
range; a sentencing court need only “set forth enough to satisfy
the appellate court that [it] has considered the parties’
arguments and has a reasoned basis” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011)
(citing Gall, 552 U.S. at 56). If the district court committed
no procedural error, we review the sentence for substantive
reasonableness, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51.
As an initial matter, we note that we lack jurisdiction to
review the imprisonment portion of Lowery’s sentence, as his
release from prison renders any challenge to his imprisonment
moot. As a result of Lowery’s release, “there is no wrong to
remedy,” and this court “cannot grant any effectual relief
whatever in favor of the appellant” as to the imprisonment
component of his sentence. United States v. Hardy, 545 F.3d
280, 285 (4th Cir. 2008). We therefore review only the district
court’s decision to sentence Lowery to three years of supervised
release.
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Lowery did not request a specific term of supervised
release, nor did he assert in the district court any objection
to the imposition of supervised release, or the length of the
term. Accordingly, we review only for plain error. United
States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013). *
Lowery’s guilty plea to possessing a stolen firearm established
his guilt of a Class C felony, for which a district court may
impose a term of supervised release of up to three years. 18
U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(b)(2) (2012).
The Supreme Court has rejected the argument that a
defendant is entitled to offset an excess term of imprisonment
with a shortened term of supervised release. As the Supreme
Court explained, the “objectives of supervised release would be
unfulfilled if excess prison time were to offset and reduce
terms of supervised release. Congress intended supervised
release to assist individuals in their transition to community
life. Supervised release fulfills rehabilitative ends, distinct
from those served by incarceration.” United States v. Johnson,
529 U.S. 53, 59 (2000). The Supreme Court also recognized that,
*
Under plain error review, the challenging party must show
that (1) there was an “error” (2) the error was “plain”, (3) the
error “affect[s] substantial rights,” and (4) the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Myers,
280 F.3d 407, 412 (4th Cir. 2002) (quotation marks omitted).
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to remedy the iniquity of an excess prison term, a sentencing
court may modify or (in some circumstances) terminate the
defendant’s supervised release obligations if these obligations
no longer appear warranted. Id. at 60.
In this case, counsel noted during the sentencing hearing
that Lowery was “entitled to almost 500 [days] of good time
credit,” but did not request that the court account for this
credit in any way other than stating that the requested sentence
of imprisonment was for time served. The district court
considered Lowery’s post-release plans, his record during
incarceration, and his extensive criminal history before
announcing its sentence.
We conclude that Lowery’s circumstances warranted the
imposition of a term of supervised release, and that, given his
criminal history and likelihood of recidivism, the district
court did not plainly err in imposing the maximum term available
under the law. Nor did the district court err in failing, sua
sponte, to credit Lowery’s excess imprisonment against his term
of supervised release.
II.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Lowery’s conviction and sentence.
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This court requires that counsel inform Lowery, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Lowery 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 Lowery.
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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