United States v. Marc Barnes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4277
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARC ASHLEY BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:10-cr-00055-RLV-DCK-1)
Submitted: October 2, 2012 Decided: October 11, 2012
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter,
Assistant Federal Defender, Asheville, North Carolina, Ann L.
Hester, Assistant Federal Defender, Charlotte, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marc Ashley Barnes pled guilty without a plea
agreement to one count of unlawful possession of a firearm and
ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2006), and was sentenced to 120 months in prison. Barnes’
presentence investigation report determined that a cross-
reference to the kidnapping Guideline was appropriate. Although
Barnes objected to the Guideline’s application, the district
court overruled Barnes’ objection. Barnes’ sole argument is
that the district court committed procedural sentencing error
when it allegedly failed to make factual findings on each
element necessary for the cross-reference’s application.
Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005),
this court reviews a sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires the court to ensure that the district court
committed no significant procedural error. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008). Procedural errors
include “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
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chosen sentence—including an explanation for any deviation from
the Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless the court can conclude “that the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
However, we review unpreserved non-structural sentencing errors
for plain error. Id. at 576-77.
Although the Government urges us to review Barnes’
assignment of error for plain error, we find that the district
court committed no error, plain or otherwise, when it provided
its rationale for applying the cross-reference to the kidnapping
Guideline. Admittedly, as part of this court’s review of the
procedural reasonableness of a particular sentence, we have
stressed the importance of an adequate explanation for a
sentencing decision. See United States v. Wilkinson, 590 F.3d
259, 269 (4th Cir. 2010) (observing that a sentencing court must
provide “a sufficient explanation of its rationale” in making
factual findings to support its calculation of a defendant’s
Guidelines range); United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that a sentencing court is obliged to
“place on the record an individualized assessment based on the
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particular facts of the case before it”) (internal quotation
marks omitted).
An adequate explanation of such a rationale not only
“allows for meaningful appellate review, but it also promotes
the perception of fair sentencing.” Carter, 564 F.3d at 328(internal quotation marks and brackets omitted). Thus, as
Barnes correctly asserts, we require a district court to make
factual findings necessary to justify application of a
Guidelines provision, and its failure to do so may require
vacatur of a resulting sentence. See United States v. Llamas,
599 F.3d 381, 388-90 (4th Cir. 2010); United States v. Chandia,
514 F.3d 365, 376 (4th Cir. 2008))). We have reviewed the
record and have considered the parties’ arguments and conclude
that the district court adequately explained its rationale for
overruling Barnes’ objection to application of the kidnapping
Guideline.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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