United States v. Gaynor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4859
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL GAYNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-05-29)
Submitted: January 27, 2006 Decided: February 14, 2006
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Gaynor pled guilty to conspiracy to manufacture five
grams or more of methamphetamine, in violation of 21 U.S.C. § 846and § 841(c)(2), and four counts of possession of listed chemicals
with reason to believe the chemicals would be used to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(2). He was
sentenced to a total of 95 months imprisonment, followed by four
years of supervised release. On appeal, Gaynor asserts that the
sentence imposed upon him by the district court was unreasonable
and seeks resentencing. We affirm.
Under United States v. Booker, 125 S. Ct. 738 (2005), district
courts are directed to calculate the appropriate guideline range,
consider the range in conjunction with other relevant factors under
the guidelines and 18 U.S.C. § 3553(a), and impose a sentence. If
a district court imposes a sentence outside the guideline range, it
must state its reasons for doing so as required by 18 U.S.C. §
3553(c)(2). See United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 547.
Here, the district court, treating the guidelines as advisory,
established a base offense level of twenty-six and granted a three-
level reduction for acceptance of responsibility, resulting in a
total offense level of twenty-three. With a criminal history
category of V, Gaynor’s recommended guideline range was 84 to 100
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months. The court imposed a sentence of 95 months imprisonment.
In doing so, the court found as follows:
After considering the sentencing range recommended by the
Advisory Federal Sentencing Guidelines and the factors
set forth in 18 U.S.C. § 3553(a), this Court finds that
a sentence within the guideline range of 84 -105 months
of imprisonment is reasonable. Moreover, a sentence
toward the higher end of that range of 95 months is
appropriate given the nature and circumstances of the
offense, the defendant’s criminal history, the
defendant’s medical condition, the amount of meth
involved and the danger that the defendant’s behavior
posed to the neighboring community. To find otherwise
would ignore the statutory objective of avoiding
disparity between sentences and the need for the sentence
imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense. Further, a sentence toward
the higher end is reasonable given the defendant’s
uncooperative posture with the Government during the
investigation of this matter. Although this behavior
does not rise to the level to preclude acceptance [of
responsibility], the sentence ought to recognize that he
could have done more and did not do so.
J.A. 160 (internal quotation marks omitted).
On appeal, Gaynor claims that the 95-month sentence is
unreasonable because the district court based it, at least in part,
upon Gaynor’s exercise of his Fifth Amendment privilege against
self-incrimination and his refusal to fully cooperate with the
authorities in their methamphetamine investigation. Gaynor did not
assert this Fifth Amendment right at sentencing, nor otherwise
object to the sentence on these grounds before the district court.
Accordingly, we review his claim under the plain error standard.
See United States v. Olano, 507 U.S. 725, 731-32 (1993) (appeals
court will not notice unpreserved error unless error occurred, that
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was plain, affected substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings).
In United States v. Rivera, 201 F.3d 99, 101-02 (2d Cir.
1999), relied upon by Gaynor, the defendant appealed the district
court’s imposition of a sentence which was within the guideline
range because the court specifically attributed sixty months of the
sentence to the defendant’s failure to cooperate. The Second
Circuit held that the increase was an unconstitutional penalty.
This decision, however, placed the Second Circuit in disagreement
with the Seventh Circuit, which has held that a district court is
free to consider the defendant’s failure to cooperate when
assigning a sentence within the guideline range. See United States
v. Price, 988 F.2d 712, 722 (7th Cir. 1993); United States v.
Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991). We have not yet
addressed the issue of whether a defendant’s rights under the Fifth
Amendment limit the district court’s discretion in selecting a
sentence, either within or outside the guideline range. However,
we are satisfied that Gaynor is not entitled to relief because he
has not shown that plain error occurred in his case.
Accordingly, we affirm Gaynor’s conviction and sentence. 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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