US v. Jackie Clark, No. 12-4300 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4300 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JACKIE CLARK, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00035-RLV-DCK-14) Submitted: September 25, 2012 Decided: October 10, 2012 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jackie Clark appeals the 240-month downward variant sentence imposed upon him after the disposition of his initial direct appeal, in which we affirmed his convictions but vacated his sentence and remanded his case to the district court for resentencing in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Clark s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he states appeal, that but he could questions identify whether no the meritorious district issues court for properly designated Clark as a career offender. This applying States, an 552 Court abuse U.S. reviews of a sentence discretion 38, 51 for reasonableness, standard. (2007). We Gall first v. ensure United that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C. § 3553(a) (2006)] factors, selecting a sentence based on clearly erroneous facts, adequately explain the chosen sentence. error was committed, we reasonableness, taking circumstances. Id. properly calculated review into the Id. the failing to If no procedural sentence account or for substantive totality of the A sentence that falls within or below a Guidelines 2 range is presumptively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). As Clark s counsel correctly observes, the district court did not err in designating Clark as a career offender, because both of his predicate convictions were felony crimes of violence resulting in Clark s incarceration less than fifteen years prior to his commencement of the instant offenses. See United States v. Thompson, 588 F.3d 197, 202 (4th Cir. 2009); U.S. Sentencing Guidelines Manual §§ 4A1.2(k)(2)(A), 4B1.A(a), 4B1.2 cmt. n.1. Likewise, our review of the record convinces us that Clark s sentence is otherwise reasonable. We discern no error with respect to the district court s computation of the applicable Guidelines range, the opportunities the court provided Clark and his counsel to speak in mitigation, or the court s explanation of the sentence imposed by reference to the factors enumerated in § 3553(a). Nor does the record demonstrate any reason to disturb the presumptive substantive reasonability of Clark s below-Guidelines sentence. Susi, 674 F.3d at 289. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the judgment of the district court. This Court requires that counsel inform Clark, in writing, of the right to petition the Supreme Court of the United States for 3 further review. If Clark requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before Court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Clark. facts this We dispense with oral argument because the contentions are adequately the and argument Court presented would not in the aid the decisional process. AFFIRMED 4
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