United States v. Thomas Norman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS TYRONE NORMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:06-cr-00983-HMH)
Submitted: September 4, 2009 Decided: January 24, 2012
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Maxwell Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Tyrone Norman pled guilty to possession of a
firearm after having been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1) (2006); possession with intent to
distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2006); and possession of a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2006). The district court sentenced Norman as an armed career
criminal pursuant to 18 U.S.C. § 924(e) (2006), to a total of
274 months’ imprisonment. Norman’s counsel filed an opening
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal but questioning whether the sentence is reasonable.
Norman has filed pro se supplemental briefs raising additional
sentencing issues.
After our initial review pursuant to Anders, we
directed the parties to file supplemental briefs addressing the
adequacy of the district court’s explanation for the sentence
imposed. Norman asserts that the district court committed
procedural sentencing error by failing to explain adequately why
it imposed a sentence near the low end of the Guidelines range.
The Government argues, however, that the court adequately
explained its sentence and that, even if the court procedurally
erred, any error is harmless because the record does not suggest
2
that a fuller explanation would have resulted in a different
sentence. Having carefully reviewed the record in light of the
parties’ supplemental briefs, we affirm.
We review a sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires appellate consideration of
both the procedural and substantive reasonableness of a
sentence. Id. After determining whether the district court
properly calculated the defendant’s advisory Guidelines range,
we must assess whether the district court considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Id. at 49-50; see United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”). Finally, if there are no
procedural errors, we review the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” United States v. Hargrove, 625 F.3d 170, 183
(4th Cir. 2010) (internal quotation marks omitted), cert.
denied, 132 S. Ct. 292 (2011).
Before addressing the adequacy of the district court’s
explanation for the chosen sentence, we begin with Norman’s
challenges in his pro se briefs to his designation as an armed
career criminal under § 924(e) and as a career offender under
3
U.S. Sentencing Guidelines Manual § 4B1.1 (2006), 1 based upon his
prior convictions for failure to stop for a blue light, escape,
possession with intent to distribute marijuana, assault and
battery of a high and aggravated nature (“ABHAN”), pointing a
firearm, and possession with intent to distribute crack cocaine.
Norman failed to object to the armed career criminal and career
offender classifications in the district court. Thus, our
review is for plain error. See United States v. Slade, 631 F.3d
185, 189 (4th Cir.) (discussing standard of review), cert.
denied, 131 S. Ct. 2943 (2011).
Norman correctly notes that his convictions for
failure to stop for a blue light do not qualify as violent
felonies for purposes of § 924(e). See United States v. Rivers,
595 F.3d 558, 560 (4th Cir. 2010) (holding “that under no
circumstance is a violation of South Carolina’s blue light
1
To qualify as an armed career criminal, Norman must have
“three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1); see 18 U.S.C.
§ 924(e)(2)(B) (defining violent felony). To be designated as a
career offender, Norman must have been at least eighteen years
old when he committed the instant crimes of violence or
controlled substance offenses and have “at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a); USSG § 4B1.2(a) (defining
crime of violence). Because of the “nearly identical . . .
language” in § 4B1.2 and § 924(e), “precedents evaluating the
[Armed Career Criminal Act (“ACCA”)] apply with equal force to
[Guidelines section] 4B1.2.” United States v. Jenkins, 631 F.3d
680, 683 (4th Cir. 2011) (internal quotation marks omitted).
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statute a violent felony under the ACCA”). Norman also asserts
that his prior escape conviction is not a violent felony.
Applying the modified categorical approach, see United States v.
Bethea, 603 F.3d 254, 256-58 (4th Cir. 2010), we conclude that,
on the record currently before us, the escape conviction should
not have been used as a predicate violent felony to classify
Norman as an armed career criminal.
Next, Norman contends that his prior state conviction
for possession with intent to distribute marijuana did not
qualify as a serious drug offense because he faced a maximum
penalty of only five years. See 18 U.S.C. § 924(e)(2)(A)(ii)
(defining serious drug offense as a state offense having “a
maximum term of imprisonment of ten years or more”). In light
of our decision in United States v. Simmons, 649 F.3d 237, 241-
47 (4th Cir. 2011) (en banc), we agree that this prior
conviction did not qualify as a serious drug offense for
purposes of § 924(e).
Although Norman concedes that his prior ABHAN
conviction constitutes a violent felony, 2 he contends that his
2
Assuming, without deciding, that we apply the modified
categorical approach in determining whether Norman’s ABHAN
conviction constitutes a violent felony, see United States v.
Spence, 661 F.3d 194, 197-200 (4th Cir. 2011) (applying modified
categorical approach to ABHAN conviction for purposes of
enhancing sentence under 18 U.S.C. § 2252A(b)(2) (2006)), we
agree with Norman that his ABHAN conviction is a predicate
(Continued)
5
offense of pointing a firearm did not occur on an occasion
different from the ABHAN offense because he was sentenced for
those convictions on the same day and, therefore, that those
convictions should be counted as a single offense. His claim is
foreclosed by our decision in United States v. Samuels, 970 F.2d
1312, 1315 (4th Cir. 1992) (holding that “[n]othing in § 924(e)
or the Guidelines suggests that offenses must be tried or
sentenced separately in order to be counted as separate
predicate offenses”); see United States v. Tucker, 603 F.3d 260,
265 (4th Cir. 2010) (discussing factors courts consider in
determining whether offenses are separate and distinct criminal
episodes). Because Norman has three qualifying prior
convictions (pointing a firearm, 3 ABHAN, and possession with
intent to distribute crack cocaine), we conclude that the
district court did not err in classifying Norman as an armed
career criminal. 4
offense for purposes of § 924(e). The record reflects that
Norman shot Eric Bay in the left side of the chest on September
18, 2000. On the same day, Norman pointed a firearm at Katy
Bay.
3
See United States v. Thompson, 891 F.2d 507, 509-10 (4th
Cir. 1989) (holding that pointing a firearm qualifies as crime
of violence under § 4B1.2).
4
Even if the conviction for pointing a firearm or ABHAN did
not qualify as a predicate violent felony, Norman still would be
(Continued)
6
Norman also claims in his pro se briefs that he should
not have received a consecutive sentence for the § 924(c)
offense when he faced a fifteen-year mandatory minimum sentence
under § 924(e) on the § 922(g) conviction. His claim is
foreclosed by the Supreme Court’s decision in Abbott v. United
States, 131 S. Ct. 18, 23 (2010) (holding “that a defendant is
subject to a mandatory, consecutive sentence for a § 924(c)
conviction, and is not spared from that sentence by virtue of
receiving a higher mandatory minimum on a different count of
conviction”). To the extent Norman asserts that he should be
resentenced in light of Kimbrough v. United States, 552 U.S. 85
(2007), he is not entitled to relief as his Guidelines range was
determined based upon his status as an armed career criminal and
a career offender and not by the quantity of crack cocaine
involved in the drug distribution offense.
Having concluded that the district court properly
classified Norman as an armed career criminal and established a
Guidelines range of 262 to 327 months, see USSG § 4B1.1(c)(2) &
cmt. n.3, 4B1.1(c)(3), we turn to the issue of whether the
district court adequately explained its reasons for imposing a
274-month sentence. By relying on § 3553(a) and arguing “‘for a
classified as a career offender, and his Guidelines range would
be the same.
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sentence different than the one ultimately imposed,’” Norman
preserved his challenge to the adequacy of the district court’s
explanation. United States v. Powell, 650 F.3d 388, 395 (4th
Cir. 2011) (emphasis omitted) (citing Lynn, 592 F.3d at 578),
cert. denied, 132 S. Ct. 350 (2011). Thus, “we review the
district court’s sentencing procedure for abuse of discretion,
and must reverse if we find error, unless . . . the error was
harmless.” Lynn, 592 F.3d at 581.
Our review of the record leads us to conclude that the
district court failed to place on the record an individualized
assessment of the § 3553(a) factors relating to Norman. 5 See id.
at 584 (“[T]he court must offer some ‘individualized assessment’
justifying the sentence imposed and rejection of arguments for a
higher or lower sentence based upon § 3553.”) (quoting Gall, 552
U.S. at 50). Although the district court procedurally erred,
the Government has demonstrated that the error is harmless. See
Lynn, 592 F.3d at 585. The district court indicated that it had
considered the relevant § 3553 factors in light of the arguments
and evidence presented at sentencing. The arguments for a lower
sentence advanced by Norman were less than compelling in light
of his admission that he had lied to the court at the plea
5
We note, however, that the district court did not have the
benefit of Gall, Lynn, and their progeny when it sentenced
Norman.
8
hearing and his long criminal history and violations of bond,
which the Government explained impacted its decision not to move
for a downward departure based upon substantial assistance.
Thus, taking the record as a whole, we conclude that the
district court’s procedural error is harmless. See United
States v. Boulware, 604 F.3d 832, 840 (4th Cir. 2010) (stating
that, where record suggests district court considered arguments
for lower sentence and weakness of defendant’s arguments, “the
notion that having to explain its analysis further might have
changed the district court’s mind . . . is simply unrealistic
. . . , and remand for resentencing would be a pointless waste
of resources”).
Finally, with regard to the substantive reasonableness
of Norman’s sentence, we presume that a sentence imposed within
the properly calculated Guidelines range is reasonable. Rita v.
United States, 551 U.S. 338, 347 (2007). Norman has failed to
rebut that presumption. Thus, his sentence is substantively
reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other potentially
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform his
client, in writing, of the right to petition the Supreme Court
of the United States for further review. If the client requests
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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 the client. 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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