US v. Tony Swann, No. 12-4729 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4729 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TONY LEE SWANN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:11-cr-00078-WO-1) Submitted: April 19, 2013 Before KING and Circuit Judge. DAVIS, Decided: Circuit Judges, and May 10, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tony Lee Swann appeals his conviction and twenty-two months sentence possession of a entered firearm pursuant by a to his convicted guilty felon. plea On to appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but questioning whether Swann s prior state conviction for involuntary manslaughter was a predicate felony and whether Swann s sentence was reasonable. 1 pro se counsel. supplemental brief, rearguing the Swann has filed a issues raised by We affirm. 18 U.S.C. § 922(g)(1) (2006) prohibits the possession of a firearm by any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. At the time of Swann s manslaughter was a Class H felony. conviction, involuntary North Carolina v. Powell, 426 S.E.2d 91, 92 (N.C. App. 1993). The presumptive range of imprisonment for a Class H felony was three years in prison, with a maximum punishment of ten years. a three-year suspended sentence. 1 Id. Swann was given to Accordingly, as Swann could The district court imposed a variance sentence above the advisory Guidelines range of 10-16 months in prison. 2 have been sentenced to over a year in prison, Swann s prior conviction was a proper predicate under the statute. 2 We review deferential sentences for abuse-of-discretion reasonableness Gall standard. under v. a United States, 552 U.S. 38, 41 (2007). This review entails appellate consideration procedural of both the reasonableness of the sentence. procedural reasonableness, court properly range, gave calculated the parties we and Id. at 51. consider In determining whether the defendant s an opportunity substantive the advisory to district Guidelines argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) Id. factors, and sufficiently explained the selected sentence. at 49-51. If the sentence is free of significant procedural error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. Id. at 51. When rendering a sentence, the district court must make an individualized assessment based on the facts presented, United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2 In his pro se brief, Swann appears to argue that, because his sentence was suspended, it did not qualify as a predicate offense. However, a qualifying predicate felony is one for which Swann himself could have been sentenced to a prison term exceeding one year. See United States v. Simmons, 649 F.3d 237, 247 (4th Cir. 2011). It is not required that Swann was actually sentenced to serve (or did in fact serve) over one year. Likewise, Swann s assertion that his involuntary crime could not constitute a predicate offense is without support. 3 2009) (internal quotation marks and emphasis omitted), and must adequately explain the chosen sentence to allow for meaningful appellate review a Guidelines to promote the Gall, 552 U.S. at 50. sentencing. imposes and sentence range, we that falls consider perception fair When a district court outside whether of of the the applicable sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing United range. States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). conducting district this review, court s we decision must that give the § due deference 3553(a) whole, justify the extent of the variance. In to factors, the on a Gall, 552 U.S. at 51. Here, counsel does not point to any specific alleged error in Swann s sentence. In his pro se brief, Swann asserts that opportunity he did not have an to explain his prior conviction or to note that he was permitted to possess a gun under North Carolina law. However, the district court heard extensive argument by counsel regarding the circumstances of the prior conviction, and Swann declined to allocute. Moreover, Swann admitted in the factual basis that his prior conviction had not been expunged and that his civil rights had not been restored. 4 The district court clearly heard Swann s arguments for leniency, but the court found the aggravating factors of Swann s crime and background outweighed the mitigating factors. court properly considered the nature and The circumstances of Swann s conviction and the fact that his relevant conduct was more serious than mere possession of a firearm. Finally, the court gave specific, detailed reasoning for the upward variance. Accordingly, the sentence is not procedurally unreasonable. Next, we conclude that the sentence was substantively reasonable, as it was within the prescribed statutory range and resulted from the district relevant § 3553(a) factors. court s proper weighing of the Here, the district court explained at length its decision to sentence Swann above the Guidelines range, referring multiple times to Swann s continued, illegal possession of a firearm; his lack of credibility; reckless behavior while possessing the firearm. and his The district court s decision to depart six months above the Guidelines range is supported by the record and does not constitute an abuse of discretion. This court requires that counsel inform her client, in writing of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for 5 leave to withdraw from representation. Counsel=s motion must state that a copy thereof was served on the client. 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 this decisional process. AFFIRMED 6
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