US v. James Lackard, No. 13-4274 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4274 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES O BRIEN LACKARD, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:12-cr-00301-JAB-1) Submitted: December 13, 2013 Decided: December 31, 2013 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH, Washington, D.C., for Appellant. Ripley Rand, United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James O Brien Lackard appeals his 121-month sentence, which was imposed after he pled guilty pursuant to a plea agreement to one count of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846 (2012). sentence is both procedurally and Lackard asserts that his substantively unreasonable, and he asks that we remand his case to the district court so the Government may Justice s recent consider whether, memoranda given regarding the charging Department crimes of carrying statutory mandatory minimum sentences, it wishes to again charge him with the crime of which he was convicted. After considering Lackard s arguments, we affirm the district court s judgment. We review a criminal sentence, whether inside, just outside, or significantly reasonableness, standard. under outside a the Guidelines deferential range, for abuse-of-discretion United States v. King, 673 F.3d 274, 283 (4th Cir.), cert. denied, ___ U.S. ___, 133 S. Ct. 216 (2012); see Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural error. F.3d 155, 161 (4th Cir. 2008). United States v. Evans, 526 Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence 2 based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51. [I]f a party repeats on appeal a claim of procedural sentencing error like those at issue here, which it has made before the district court, we review for abuse of discretion. If we find such abuse, we reverse unless we conclude that the error was harmless. United States v. Lynn, 592 F.3d 572, 576 (4th For Cir. 2010). instance, if an aggrieved party sufficiently alerts the district court of its responsibility to render an individualized explanation by drawing arguments from § 3553 for a sentence different than the one ultimately imposed, the party sufficiently preserves its claim. 578. Id. at However, we review unpreserved non-structural sentencing errors for plain error. Id. at 576 77. If, and only if, we find the sentence procedurally reasonable can we consider the substantive reasonableness of the sentence imposed. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Because Lackard requested a sentence different than the one ultimately imposed by the district court, we review his sentence for abuse of discretion. King, 673 F.3d at 283. Lackard s arguments to the contrary, we procedural sentencing error by the district court. discern no Although Lackard asserts that the district court erred when it denied his 3 request for a downward departure because he argues the district court erroneously combined the substantive contours applicable to his requests for a departure and variant sentence, the record does not support this argument. that the district court Rather, the record establishes considered what it was required to consider in determining whether a departure was warranted and there is no indication that the district court misunderstood its authority ( USSG ) to depart. § 5H1.6, See p.s. U.S. (2012) Sentencing ( In Guidelines sentencing a Manual defendant convicted of an offense other than an offense [not at issue on this appeal], family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted. ); see also Gall, 552 U.S. at 49-50 (holding that although the Guidelines should be the starting point and the initial benchmark district court of should calculating then a consider proper sentence, all the of the § 3553(a) factors to determine whether they support the sentence requested by a party ); United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008) review a (holding that this court lack[s] the authority to sentencing court s denial of a downward departure unless the court failed to understand its authority to do so ). Although Lackard also asserts that the district court erred because it allegedly never considered whether a one-month departure was appropriate, Lackard 4 primarily and specifically asked the district court to consider allowing him to stay at home to care for his children rather than receive prison time. Although defense counsel eventually asked for some level of departure[,] carefully the record considered confirms that the request but determined this district court that no departure was warranted and that a 121-month sentence was an adequate sentence. Because Lackard s 121-month sentence was the bottom of his Guidelines range, we presume on Guidelines sentence is reasonable. appeal that the within- United States v. Mendoza- Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) ( [W]e may and do treat on appeal a district court s decision to impose a sentence within the Guidelines range as presumptively reasonable. ). an attempt Guidelines to rebut presumption Lackard sentence, the argues afforded that the his In within- district court erred when it determined that Lackard s care for his disabled son had to be irreplaceable before Lackard could qualify for a downward departure under USSG § 5H1.6. Although Lackard acknowledges that this was the standard employed by this court before United States v. Booker, 543 U.S. 220 (2005), Lackard suggests that the continuing viability of this standard is in doubt post-Booker. Lackard s Guidelines are suggestion still to to be the contrary, considered 5 in however, determining the an appropriate sentence. administration Guidelines and should benchmark. ). See Gall, 552 U.S. at 49 ( As a matter of to be In secure the nationwide starting addition, consistency, point because and the the the initial district court specifically addressed several § 3553(a) factors before imposing Lackard s sentence and explicitly tied them to Lackard s case, we find that Lackard has failed to rebut the presumption of reasonableness afforded United States v. 2006) ( A his within-Guidelines Montes-Pineda, defendant can 445 only F.3d rebut 375, the sentence. 379 (4th presumption See Cir. by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors. ) (brackets omitted). Lackard finally asks that we remand his case to the district court so that the Government may determine whether it would again charge him with a crime carrying a mandatory minimum sentence under the U.S. Department of Justice s new policy on charging such crimes. Other than his summary assertion that a remand for reconsideration would only be fair because his case is not yet final, Lackard presents no evidence to establish that the Government s failure to apply its new policy in this case would violate his equal protection rights. Armstrong, broad 517 U.S. discretion 456, afforded 464 (1996) federal See United States v. (holding prosecutors that to given the enforce the United States criminal laws, in the absence of clear evidence 6 to the contrary, courts presume that [federal prosecutors] have properly discharged their official duties ) (internal quotation marks, brackets and citation omitted); United States v. Chemical Found., 272 U.S. 1, 14 15 (1926) (holding that to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant contrary ). must present clear evidence to the Accordingly, we refuse Lackard s request to remand this case. Based on the foregoing, we affirm the district court s judgment. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7