US v. Jamie Hargrove, No. 12-4557 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4557 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMIE M. HARGROVE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:11-cr-00249-F-1) Submitted: April 26, 2013 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, May 2, 2013 and HAMILTON, Affirmed by unpublished per curiam opinion. Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jamie selling a Hargrove appeals from sentence 210-month M. imposed pursuant to firearm and ammunition to his his a convictions guilty convicted plea felon possession of a firearm and ammunition by a convicted felon. and to and On appeal, Hargrove challenges the factual basis for his plea, the sufficiency of the reasoning given by the district court for his sentence, and the effective assistance of his counsel. We affirm. I. Hargrove first argues that the district court erred in failing to establish a factual basis, in particular with regard to whether Hargrove and the buyer of the firearm were convicted felons. 1 Because Hargrove did not move in the district court to withdraw his guilty plea, our review is for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To establish plain error, Hargrove must show: (1) an error was made; (2) the error is plain; 1 and (3) the error affects Hargrove raises these claims as two separate issues on appeal: (1) whether the factual basis was established and (2) whether the court established sufficient facts regarding the felon status of Hargrove and the buyer to sustain a conviction. Specifically, on the second issue, Hargrove asserts that the lack of a factual basis makes it impossible to determine whether the convictions at issue complied with United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). 2 substantial rights. United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). The decision to correct the error lies within our discretion, and we exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at 343 (internal quotation marks omitted). Here, even assuming that there was an insufficient factual basis for Hargrove s plea constituting plain error, we conclude that Hargrove still fails to establish plain error because he has not shown that the error affected his substantial rights. In the guilty plea context, a defendant meets this burden by showing that, but for the error, he would not have entered his guilty plea. Id. Hargrove, however, does not suggest that he would not have pled guilty but for the district court s error. 2 Moreover, Hargrove does not assert that the Government could not provide a factual basis for each element and fails to provide any evidence or argument that a factual basis did not exist. 3 Because Hargrove does not show that his 2 In fact, even on appeal, Hargrove does not seek to stand trial. Instead, he requests that he be allowed to replead and be resentenced. 3 While citing Simmons, Hargrove makes no attempt to show that his convictions are not felonies, that the buyer was not a felon, or that any of the other elements are unsupported by facts. 3 substantial rights have been affected, he fails to show plain error. II. Hargrove avers that his 210-month sentence was above the advisory Guidelines range and that the court did not provide sufficient reasoning for the departure. Hargrove s Guidelines range was 120 months; however, absent the 120-month statutory maximum applicable to both counts, the Guidelines range would have been 168 to 210 months. Thus, the district court imposed consecutive sentences totaling the 210-month Guideline sentence determined to be appropriate: 120 months on the sales charge and 90 months on the possession charge. 4 This methodology is not only permitted but required by the Guidelines. If the total punishment calculated by the Guidelines exceeds the highest statutory maximum, the district court shall impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Sentencing Guidelines Manual § 5G1.2(d) (2011). U.S. Moreover, the district court is not prevented from stacking sentences when the counts, as here, have been grouped. 4 See United States v. Chase, Hargrove avers that he received a 220-month sentence and, therefore, was above the Guidelines range even if the consecutive sentences were appropriate. However, Hargrove s allegations seems to be based on an arithmetic error. 4 296 F.3d 247, 250-51 (4th Cir. 2002). court did not Hargrove s err total in imposing sentence, Accordingly, the district consecutive was which sentences, the within range, is presumptively reasonable on appeal. and Guidelines Rita v. United States, 551 U.S. 338, 347 (2007). Turning court did not to Hargrove s provide assertions sufficient that reasoning the for district the sentence, we conclude that Hargrove is mistaken. chosen A district court must make an individualized assessment and must apply the relevant [18 U.S.C.] § 3553(a) specific circumstances of the case. 564 F.3d 325, within-Guidelines assessment because need 328 (4th sentence not be guidelines Cir. [(2006)] to the United States v. Carter, 2009). is imposed, elaborate or sentences factors However, the are a individualized lengthy, themselves when id. in at 330, many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing policy, United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal quotation marks omitted). At sentencing in the instant case, the district court heard argument Hargrove s The court from lengthy, both serious, recognized that parties and and violent Hargrove s specifically noted criminal background. repeated assaultive behavior coupled with his propensity to carry firearms creates 5 a dangerous environment for any community in which Mr. Hargrove will be living. The court also noted that previous sanctions had failed to deter Hargrove. The court adopted the findings in the explicitly presentence report and considered those findings While court may the as have well been as stated the uncertain that § 3553(a) as to it had factors. whether the imposed sentence was technically considered a departure or a within-Guidelines sentence, the court provided sufficient reasoning to support either and clearly reached a considered decision that 210 months was the appropriate sentence. Thus, we find that Hargrove s sentence was both within the Guidelines range and reasonable. III. Finally, Hargrove claims that his attorney was ineffective during plea negotiations, at his plea hearing, and at sentencing. However, claims of ineffective assistance of counsel are not cognizable on direct appeal unless the record clearly demonstrates ineffectiveness. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) ( [I]t is well settled that a claim of ineffective assistance should be raised in a 28 U.S.C. § 2255 motion in the district court rather than on direct ineffective appeal, unless assistance. ) the (internal 6 record conclusively quotation marks shows omitted). Because our review of the record discloses that there is no conclusive evidence of ineffective assistance, we decline to consider this claim at this time. Based convictions and on the sentence. foregoing, We we dispense affirm with oral Hargrove s argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 7
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