United States v. Brayan Mengou

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4539
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRAYAN MENGOU,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, District Judge. (3:20-cr-00008-GMG-RWT-2)
Submitted: January 30, 2023 Decided: February 15, 2023
Before NIEMEYER and THACKER, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Lara Kay
Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Brayan Mengou pleaded guilty, pursuant to a written plea agreement, to aiding and
abetting the illegal transportation or receipt of firearms, in violation of 18 U.S.C.
§§ 922(a)(3), 924(a)(1)(D). The district court sentenced him to 60 months’ imprisonment.
On appeal, Mengou’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), concluding that there are no meritorious grounds for appeal but questioning
whether Mengou’s sentence is reasonable. For the following reasons, we affirm.
We review Mengou’s sentence “for reasonableness ‘under a deferential abuse-of-
discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting
Gall v. United States, 552 U.S. 38, 41 (2007)). Our reasonableness review has procedural
and substantive components. We first must ensure that the district court did not commit
procedural error, such as “failing to calculate (or improperly calculating) the [Sentencing]
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 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). “When rendering a sentence, the district
court must make an individualized assessment based on the facts presented”; state in open
court the reasons supporting its chosen sentence; and “address the parties’ nonfrivolous
arguments in favor of a particular sentence” and, if it rejects them, explain why in a manner
allowing for “meaningful appellate review.” United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019) (internal quotation marks omitted).
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If the sentence is procedurally sound, we review the substantive reasonableness of
the sentence. 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).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation
marks omitted). Any sentence within a properly calculated Guidelines range is
presumptively substantively reasonable, and Mengou bears 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).
Anders counsel questions whether the district court erred in enhancing Mengou’s
base offense level by four levels pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) (2018). The Guidelines instruct that the enhancement is warranted if the
defendant “used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or
reason to believe that it would be used or possessed in connection with another felony
offense.” USSG § 2K2.1(b)(6)(B). “[A] firearm is possessed ‘in connection with’ another
felony offense for purposes of the four-level enhancement when that firearm ‘facilitated[]
or had the potential of facilitating’ another felony.” United States v. Bolden, 964 F.3d 283,
287 (4th Cir. 2020) (quoting USSG § 2K2.1 cmt. n.14(A)). “[T]his standard is not
especially burdensome: We will find it satisfied when a firearm has some purpose or effect
with respect to the other offense, including cases where a firearm is present for protection
or to embolden the actor.” Id. (internal quotation marks omitted). “When the other felony
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offense is drug trafficking, then . . . a firearm found in close physical proximity to drugs
presumptively has the potential of facilitating the trafficking offense.” Id. at 287-88
(cleaned up); see USSG § 2K2.1 cmt n.14(B). We conclude that the district did not clearly
err by applying the four-level enhancement because, at the very least, Mengou possessed a
firearm with “reason to believe” that it would be used or possessed in connection with a
drug trafficking offense. See USSG § 2K2.1(b)(6)(B).
Anders counsel further questions whether the district court adequately addressed
Mengou’s nonfrivolous arguments in favor of a reduced sentence, including the mitigating
effects of his youth and his traumatic childhood. Upon review, we conclude that the district
court sufficiently explained its reasons for imposing a 60-month sentence and implicitly
acknowledged Mengou’s mitigation arguments in that explanation. See United States v.
Blue, 877 F.3d 513, 521 (4th Cir. 2017) (noting that reviewing courts can use surrounding
context to infer sufficient consideration of mitigation arguments). The court considered
Mengou’s extensive involvement with gangs and drugs, his long criminal history that
began at the age of 13, his prior felony conviction for a gang-related assault, and his
minimal employment history. However, the court also paid particular attention to a pre-
sentencing forensic psychiatric evaluation of Mengou that recounted in detail his personal
history and traumatic childhood, considered the arguments regarding Mengou’s young age
in finding that he needed the structure and training that prison would provide, and imposed
a supervised release condition designed to assist Mengou escape his gang-related past.
Therefore, we conclude that Mengou’s sentence was procedurally reasonable. Finally, we
conclude that Mengou’s within-Guidelines sentence was also substantively reasonable.
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In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Mengou, in writing, of the right to petition the
Supreme Court of the United States for further review. If Mengou 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 Mengou.
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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