US v. Antonio Frazier, No. 15-4047 (4th Cir. 2015)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4047 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO LAMONT FRAZIER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:14−cr−00062−JAG−1) Submitted: May 29, 2015 Decided: August 28, 2015 Before WILKINSON, DIAZ, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Geremy C. Appellate Defender, Virginia, Attorney, Assistant ATTORNEY, Kamens, Federal Public Defender, Patrick L. Bryant, Attorney, Mary E. Maguire, Assistant Federal Public OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, for Appellant. Dana J. Boente, United States Alexandria, Virginia, Michael A. Jagels, Special United States Attorney, OFFICE OF THE UNITED STATES Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Lamont Frazier pleaded guilty without a plea agreement to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The presentence report (“PSR”) calculated a Sentencing Guidelines range of 84105 months’ imprisonment. The district court sentenced Frazier to the statutory maximum of 120 months’ imprisonment. Frazier appeals his sentence, and substantive reasonableness. challenging its procedural We affirm. I. A. In January 2014, Frazier was approached housing project in Richmond, Virginia. slipped and fell. As Frazier lay by police in a He began to run, but he on the ground, officers observed a black semi-automatic Ruger 9mm handgun in his hand. Frazier was arrested. A search of his person revealed a clear, plastic sandwich bag that contained seven individually wrapped plastic bag corners, which Frazier reported contained heroin. B. Frazier was indicted and pleaded guilty without a plea agreement to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (“PSR”) computed his base offense level as 2 24, based on two prior felony convictions for a controlled substance offense and for a crime of violence, as defined in United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2 (2014). The prior conviction for a crime of violence was for possession of a short-barrel conviction was for shotgun, while possession of the controlled heroin with substance intent to distribute. The PSR noted that Frazier possessed the 9mm handgun in connection with another offense and enhanced his offense level by four. Frazier’s offense level was decreased by three levels for acceptance of responsibility, resulting in a total offense level of 25. Together with a criminal history category of IV, Frazier’s Guidelines range was 84-105 months’ imprisonment. 1 Frazier did not object to the PSR’s Guidelines range, but he did ask the district court to vary down from the range and impose a sentence of 60 months’ imprisonment. the parties’ arguments and each factor After considering under 18 U.S.C. § 3553(a), the court varied up from the Guidelines range and 1 According to Frazier, had the conviction for possession of a short-barrel shotgun not counted as a crime of violence, his base offense level would have been 22 and his Guidelines range would have been 70-87 months’ imprisonment. While we believe the correct base offense level would have been 20, with a Guidelines range of 57-71 months’ imprisonment, the difference does not affect our analysis. 3 sentenced Frazier to the statutory maximum of 120 months’ imprisonment. Frazier filed a timely appeal. II. A. The Guidelines provide for an enhancement to the sentence of a “career offender” if, among other requirements, the defendant has at least two prior felony convictions for either a “crime of violence” § 4B1.1(a). relevant The part or a controlled Guidelines as an define offense that a substance “crime “is of [the] offense. violence” burglary in of a dwelling, arson, or extortion, involves use of explosives” or, in what is known as the residual clause, “otherwise involves conduct that presents injury to another.” a serious potential risk of physical § 4B1.2(a)(2). B. Frazier challenges the procedural reasonableness of his sentence on two grounds. First, he argues that the district court his erred by enhancing sentence under the Guidelines residual clause because that clause is unconstitutionally vague. Second, Frazier contends that his prior conviction for possession of a short-barrel shotgun does not fall within the Guidelines residual clause definition of “crime of violence,” 4 because it is not similar, in kind or in degree of risk posed, to the offenses enumerated within § 4B1.2. Because Frazier raises these claims for the first time on appeal, we review for plain error. F.3d 572, 577 (4th Cir. 2010). United States v. Lynn, 592 To meet his burden, Frazier must show that an error (1) was made, (2) is plain, and (3) affects his substantial rights. Id. If Frazier makes this showing, we have discretion to remedy the error, and will do so “only if the error ‘seriously affect[s] the fairness, reputation of judicial proceedings.’” integrity or public Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). An error is plain when it is “clear or obvious,” meaning that “the settled law of the Supreme Court or this [court] establishes that an error has occurred,” or, in some cases, when authority from other circuits is unanimous. Carthorne, 726 F.3d 503, 516 & n.14 (4th United States v. Cir. 2013). In assessing a defendant’s claim, an error need only be plain by the time of appellate review. Henderson v. United States, 133 S. Ct. 1121, 1130 (2013). In Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act (the “ACCA”) is unconstitutionally vague. Because the ACCA residual clause and the Guidelines residual 5 clause are “substantially similar,” United States v. Seay, 553 F.3d 732, 738 (4th Cir. 2009), this case presents the issue of whether the holding in Johnson extends to the Guidelines residual clause. 2 We assume without deciding that plain error occurred, meaning that Frazier’s proper Guidelines range should have been either 57-71 or 70-87 months in prison. error to affect a defendant’s Nonetheless, for an substantial rights, “he must demonstrate that it ‘affected the outcome of the district court proceedings.’” U.S. at 734). Puckett, 556 U.S. at 135 (quoting Olano, 507 As applied here, Frazier must point to “a nonspeculative basis in the record to conclude that the district court would have imposed a lower sentence but for the error in calculating [the defendant’s] offense level.” United States v. Knight, 606 F.3d 171, 180 (4th Cir. 2010). Frazier fails to make this showing. Not only did the district court reject Frazier’s request for a downward variant sentence, but it also chose to vary upward to the statutory maximum prison term for the 2 offense, reasoning that In United States v. Hood, 628 F.3d 669, 670 (4th Cir. 2010), we held that possession of a sawed-off shotgun constitutes a “crime of violence” under the Guidelines residual clause. Frazier acknowledges that his arguments are currently foreclosed by Hood and, of course, the district court did not have the benefit of the Supreme Court’s guidance in Johnson when it sentenced Frazier. 6 “[g]iven . . . the danger to the public and the prior criminal history, and . . . the fact that the longest stretches of noncriminal behavior occur when [Frazier is] in prison, I think that a sentence of 120 months . . . is sufficient but does not exceed the amount of time necessary to achieve the goals of sentencing.” J.A. 98. On this record, it would be sheer speculation to conclude that the district court would have imposed a lesser sentence but for the alleged error. with respect to the Thus, we decline to find plain error district court’s calculation of the Guidelines range. III. We next consider Frazier’s argument that the district court abused its discretion when it varied upward from the Guidelines range in sentencing him. Frazier contends that his sentence is substantively unreasonable for three reasons. that the district court did not sentences requested by the parties. First, he argues adequately consider the The government asked for a sentence within the Guidelines range, 3 while Frazier requested that the district court vary 3 downward to 60 months’ But the government noted that it would not object to a sentence at the statutory maximum. J.A. 77. 7 imprisonment. placed too much insufficient Third, Second, Frazier asserts that the district court weight on consideration Frazier contends his to criminal that the the record evidence district in court and gave mitigation. performed a formulaic review of the 18 U.S.C. § 3553(a) factors, without substantively considering each individual factor. We review sentencing decisions for reasonableness under a deferential abuse-of-discretion standard. States, 552 U.S. 38, 46 (2007). substantive reasonableness totality the of by “tak[ing] circumstances, has discretion to v. United We consider the sentence’s including variance from the Guidelines range.” court Gall sentence a into the account extent Id. at 51. defendant the of any A district outside of the Guidelines range, so long as it considers the parties’ arguments and provides a sufficient and reasoned basis for its departure or variance. See United States v. Diosdado-Star, 630 F.3d 359, 364-65 Cir. (4th 2011) (noting that the district court’s decision to depart or vary does not change this court’s review or the justification that the district court must provide). minor variance from the Guidelines range significant justification than a major one. requires a A less See Gall, 552 U.S. at 50. Before sentencing, the district court notified the parties that it would consider sentencing Frazier above the Guidelines 8 range, up to the statutory maximum. The PSR suggested that an upward departure from the Guidelines range might be warranted, because Frazier’s convictions and adult four criminal misdemeanor record contained convictions that two felony were not considered in calculating his criminal history category. See U.S.S.G. § 4A1.3(a)(2) (noting that a district court may support an upward departure by considering prior sentences not used in calculating the defendant’s criminal history category). The convictions that were not considered include abduction, assault and battery, damage to property, carrying a concealed weapon, and carrying a loaded shotgun. The PSR also noted a potential likelihood of Frazier’s committing other crimes, as he had been found in violation of his supervised release on two occasions. At sentencing, the district court chose not to depart. Instead, it heard both parties’ arguments and considered each § 3553(a) factor in turn before deciding to impose a variant sentence. the In considering Frazier’s history and characteristics, district substance court abuse recognized issues, and Frazier’s history of difficult depression. upbringing, But the court also noted that Frazier has “a long history of violent and nonviolent crime, which includes a fondness for firearms.” 93. J.A. The court further noted Frazier’s “unrepentant criminal activity, his past assaultive behavior, . . . his past possession of firearms, and the danger he poses to the public.” 9 J.A. 97. In deciding to impose the statutory maximum prison term, the district court stated that a 120-month sentence would “reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, and protect the commit.” from further crimes that Mr. Frazier may J.A. 98. We find reasonable. parties’ public that The Frazier’s district arguments and the sentence court is adequately § 3553(a) factors that an upward variance was appropriate. substantively considered before the deciding In so doing, it acted well within its discretion. IV. For district facts the court. and materials above legal before reasons, We dispense we affirm with oral the argument contentions are adequately this and argument court judgment of the because the presented would not in the aid the decisional process. AFFIRMED 10

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