US v. Gerald Clemons, No. 09-4484 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4484 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD DEWAYNE CLEMONS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:08-cr-00014-D-1) Submitted: June 25, 2010 Decided: July 20, 2010 Before KING, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Felice McConnell Corpening, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gerald Dewayne Clemons pled guilty to unlawful possession of firearms and ammunition by a convicted felon, and was sentenced to a term of ten years imprisonment, the statutory maximum and the only possible guideline sentence. * Clemons contends that his sentence is procedurally unreasonable because the district court failed to explain why it did not grant him a downward variance responsibility. unreasonable for having because the review a court 51 and accepted (2007). rejected his request for sentence This for reasonableness under appeals properly U.S.C. court calculated § 3553(a) presented by the selected sentence. must the requires assess consideration whether guidelines (2006) parties, an Gall v. United States, 552 U.S. of both the procedural and substantive reasonableness of a sentence. The a We affirm. abuse-of-discretion standard. 38, guilty He contends that the sentence is substantively variance on that ground. We pled factors, and range, the district considered analyzed sufficiently any Id. court the 18 arguments explained the Id. at 49-50; see United States v. Lynn, 592 * The recommended advisory guideline range was 120-150 months, but because the statutory maximum sentence was ten years, the guideline range was limited to 120 months. See U.S. Sentencing Guidelines Manual § 5G1.1(c)(1) (2008). 2 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). An extensive explanation is not required as long as the appellate court is satisfied that [the district court] has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking United States v. Engle, 592 F.3d 495, 500 (4th authority. Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)), petition for cert. filed, June 10, 2010. review the substantive reasonableness of Finally, we the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence § 3553(a). it chose satisfied the standards set forth in United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Here, counsel urged the court to sentence Clemons below the advisory guidelines range, but without addressing with any specificity why a guilty plea and acceptance of responsibility constituted adequate grounds for a variance. The court declined to vary, stating at the beginning of its findings that it had considered Clemons argument. The court discussed the nature and circumstances of the offense, noting that Clemons had entered a guilty plea to unlawful possession of a firearm, but that the firearm offense was connected to his drug dealing. 3 Clemons had not acknowledged that fact, and counsel had argued that the two crimes were only loosely connected. The court discussed Clemons history of both mental health problems and prior felonies. The court took issue with Clemons statement that he had been kidnapped when he was arrested. The court stated that Clemons offense was serious and required a sentence that promoted respect for the law and provided just punishment, deterrence, and protection for the public. This record belies Clemons contention that the district court committed significant procedural error by failing to address specifically counsel s brief mention of Clemons guilty plea and acceptance of responsibility during his argument for a variance. Although the The court court did did not note Clemons specifically guilty mention plea. Clemons acceptance of responsibility, the court impliedly addressed its minimal nature by admonishing Clemons that he had been arrested for committing a serious offense, rather than being kidnapped, that the guns were connected to drug dealing, rather than possessed solely for protection, as Clemons alleged, and that Clemons should not again seek to justify possessing firearms when he completed his prison term. With respect to the substantive reasonableness of Clemons sentence, we may presume that a sentence within the properly calculated Guideline range 4 is reasonable. United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). Because the 120-month sentence was the only possible sentence within the guideline range and was also the statutory maximum of ten years imprisonment, we conclude that not presented reasonableness. We district facts therefore legal before the has to sentence rebut the imposed presumption of See Rita, 551 U.S. at 347-56. court. and materials evidence by Moreover, on appeal, Clemons district court is reasonable. the We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 5
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