US v. John Ham, Jr., No. 10-4992 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4992 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN FORREST HAM, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:10-cr-00046-HFF-1) Submitted: May 26, 2011 Decided: July 12, 2011 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. James B. Loggins, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Forrest Ham, Jr., appeals his conviction and 319month sentence imposed by the district court following a guilty plea to possession violation (2006) of 18 (Count of a U.S.C. One); firearm §§ by a 922(g)(1), carjacking, in convicted 924(a)(2), violation felon, in and 924(e) 18 U.S.C. of § 2119(1) (2006) (Count Two); and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (2006). Ham s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious reasonableness grounds supplemental designating of Ham s brief him for sentence. arguing as an appeal that armed the but Ham questioning filed district career criminal a court and the pro se erred by a career offender and by assessing criminal history points for certain prior convictions. This applying States, an 552 For the reasons that follow, we affirm. court abuse U.S. of 38, reviews a sentence for discretion standard. 51 see (2007); also Llamas, 599 F.3d 381, 387 (4th Cir. 2010). reasonableness, Gall United v. United States v. This review requires appellate consideration of both the procedural and substantive reasonableness of a sentence. Gall, 552 U.S. at 51. In determining procedural reasonableness, this court considers whether the district 2 court properly calculated the defendant s advisory Guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an individualized assessment based on the particular facts of the case before it. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). 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 authority. United States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (alterations in original), cert. denied, 131 S. Ct. 165 (2010). If the court finds no significant procedural error, it next assesses the substantive reasonableness totality of of the the sentence, circumstances, taking including variance from the Guidelines range. into the account extent of the any United States v. Morace, 594 F.3d 340, 345-46 (4th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307 (2010). Because Ham did not request a sentence different than the one ultimately imposed, we review his sentence for plain error. United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 3 2010). To establish plain error, Ham must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights. 342-43 (4th United States v. Massenburg, 564 F.3d 337, Cir. requirements, 2009). correction Even of the if Ham error satisfies remains these within [the court s] discretion, which [the court] should not exercise . . . unless the error affect[s] the fairness, integrity or public United States v. Muhammad, reputation of judicial proceedings. 478 F.3d 247, 249 (4th Cir. 2007). With these standards in mind, we have reviewed the record and conclude that Ham s sentence is both procedurally and In accordance with Anders, we have substantively reasonable. reviewed the meritorious entire issues record for in this appeal. case We and have therefore found affirm no Ham s convictions and sentence. This writing, United of court the States right for requires to further that petition review. counsel the If inform Supreme Ham Court requests Ham, in of the 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 Ham. We dispense with oral contentions argument because the facts 4 and legal are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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