US v. Courtney Harris, No. 09-4778 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4778 UNITED STATES OF AMERICA, Plaintiff Appellee, v. COURTNEY HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00002-jpj-pms-1) Submitted: July 20, 2010 Decided: August 6, 2010 Before WILKINSON, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Randy V. Cargill, Assistant Federal Public Defender, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Debbie H. Stevens, Special Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Courtney Harris, a federal inmate, pleaded guilty without a plea agreement to ten counts of indecent exposure, in violation of 18 U.S.C. § 13 (2006) and Va. Code Ann. § 18.2-387 (2009). The district court calculated Harris advisory See U.S. Guidelines range at 24 to 30 months imprisonment. Sentencing Guidelines Manual (2008). The Government moved under 18 upward U.S.C. district § 3553(a) court (2006) granted for the an Government s Harris to 60 months imprisonment. variance, motion and and the sentenced Harris appeals, asserting three grounds to vacate his sentence: first, that the district court failed to specify whether it was imposing an upward variance or an upward departure; second, that the court failed to adequately explain its rationale for imposing the sentence; and third, that the sentence is substantively unreasonable. Finding no error, we affirm. This whether court inside, reviews just the outside, under a or district court s significantly deferential sentence, outside Guidelines range, standard. Gall v. United States, 552 U.S. 38, 41 (2007). the abuse-of-discretion This review entails appellate consideration of both the procedural and substantive reasonableness of a sentence. Id. at 51. In determining procedural reasonableness, we first assess whether the district court properly calculated the defendant s advisory 2 Guidelines range. Id. at 49, 51. We then consider whether the district court treated the Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors and any arguments presented by the parties, selected a sentence based on clearly erroneous facts, or failed to explain sufficiently the selected sentence. Id. at 50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). made an individualized presented. 564 We also review whether the district court F.3d based on the facts Gall, 552 U.S. at 50; see United States v. Carter, 325, 330 individualized (4th Cir. assessment lengthy, . . . it particular assessment must 2009) (holding need not provide case . . . and a [be] be rationale adequate that, to while elaborate tailored permit the or to the meaningful appellate review (internal quotation marks omitted)). When reviewing for substantive reasonableness, we take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. 552 U.S. at 51. [from the Gall, We may consider the extent of the deviation recommended Guidelines range], but must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. Id.; see United States v. Whorley, 550 F.3d 326, 342-43 (4th Cir. 2008), cert. denied, 130 S. Ct. 1052 (2010). have imposed a different sentence, 3 this fact Even if we would alone will not justify vacatur of the district court s sentence. Whorley, 550 F.3d at 342. Harris first challenges his sentence on the ground that the district court failed to specify whether the 60-month sentence resulted departure. or from an upward variance or an upward Whether the district court has imposed a departure variance from the suggested Guidelines range has real consequences for an appellate court s review of the sentence United States v. Brown, 578 F.3d 221, 226 (3d Cir. imposed. 2009). Indeed, the permissible factors justifying traditional departures differ factors [district] a a . . . variance. n.2 (4th Cir. from -- and court are may more look to limited in than order to -- the justify United States v. Hampton, 441 F.3d 284, 288 2006). As departures are thus subject to different requirements than variances, United States v. Floyd, 499 F.3d 308, 311 (3d Cir. 2007), it is important for district courts to articulate whether a sentence is a departure or a variance from an advisory Guidelines range, Brown, 578 F.3d at 226 (internal quotation marks omitted). Because Harris did not raise this issue in the district court, our review is for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009). We procedural conclude error, much that less Harris plain 4 has failed procedural to error, establish in this regard. The Government sought an upward variance from the Guidelines range based on certain § 3553(a) factors, and the district court granted the Government s motion, stating in its written order that it varied above the Guidelines range based on relevant § 3553(a) factors. Although the district court misspoke at the sentencing hearing, erroneously characterizing its sentence as an upward departure, it is clear from the record that the court imposed a variant sentence. * Harris also claims that the district court failed to explain its decision to impose the 60-month variant sentence and that the sentence is substantively unreasonable. We disagree. The district court heard argument from Harris s counsel on the appropriate sentence, allowed Harris an opportunity to allocute, and thoroughly considered the § 3553(a) Harris in imposing the 60-month sentence. factors relevant to We have reviewed the record and conclude that the district court adequately explained * Moreover, even if we were to assume that the district court s oral mischaracterization of the sentence somehow constituted an obvious error, Harris still bears the burden of showing that such error had a prejudicial effect on the sentence In the imposed. See Puckett, 129 S. Ct. at 1429, 1433 n.4. sentencing context, an error is prejudicial if the defendant can show that, absent the error, a different sentence might have been imposed. United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010). Harris fails to make this showing, as he does not suggest that the district court s mischaracterization had any effect on the sentence imposed or that, but for it, a different sentence might have been imposed. 5 its rationale sentence was for imposing selected the variant pursuant to a sentence, reasoned that process the in accordance with law, and that the reasons relied upon by the district court are plausible and justify the sentence imposed. Pauley, Although 511 F.3d Harris at 473-76; argues that see a Carter, 60-month 564 F.3d prison at sentence 330. is unreasonably long, we afford due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. Thus, we conclude Gall, 552 U.S. at 51. that the district abuse its discretion in sentencing Harris. the district court s judgment. court did not We therefore affirm 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 6

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