US v. David Brackett, No. 12-4995 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4995 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID F. BRACKETT, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:12-cr-00059-GMG-DJJ-1) Submitted: June 10, 2013 Before MOTZ and Circuit Judge. DAVIS, Decided: Circuit Judges, and June 12, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Eric S. Black, Berkeley Springs, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Andrew R. Cogar, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David F. Brackett, Jr., appeals the district court s imposition of consecutive 162-month and 120-month sentences following his convictions for wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (2006), and money laundering, in violation of 18 U.S.C. § 1957(a) (2006), respectively. On appeal, Brackett contends that the district court committed procedural error by failing to properly apply U.S. Sentencing Guidelines Manual (USSG) § 5G1.2 (2011), and imposing consecutive sentences. abused its discretion by Finding no reversible error, we affirm. In district reviewing court did a not sentence, commit we any must ensure significant that the procedural error, such as failing to properly calculate the applicable Guidelines (2007). range. Gall v. United States, 552 U.S. 38, 51 In assessing the district court s application of the Guidelines, we review the district court s factual findings for clear error and its legal conclusions de novo. United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). Assuming, without deciding, that the district court committed procedural error in its application of USSG § 5G1.2 and imposition of consecutive sentences, we conclude that any error was harmless and does not require reversal on appeal. Fed. R. Crim. P. 52(a) ( Any error, 2 defect, irregularity See or variance that does not affect substantial rights must be disregarded. ); United States v. Savillon-Matute, 636 F.3d 119, 123-24 (4th Cir. 2011) (permitting assumed error harmlessness inquiry ) (internal quotation marks omitted). the record that the district court It is clear from would have imposed consecutive sentences regardless of the Guidelines and that the consecutive sentences were permissible and reasonable under the circumstances. See Savillon-Matute, 636 F.3d at 123-24 (providing requirements for assumed error harmlessness inquiry); see also 18 U.S.C. § 3584(a), (b) (2006) (requiring court to consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a) in imposing consecutive sentences); Cajero, 134 F.3d 1246, 1249 United States v. Candelario- (5th Cir. 1998) (finding that § 3584(a) permits departure from USSG § 5G1.2 grouping rules). Thus, we conclude that the court did not abuse its discretion in imposing consecutive sentences for Brackett s offenses. See United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010) (providing standard of review). Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 3
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