US v. Jerry McMahan, Jr., No. 13-4983 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4983 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERRY LEROY MCMAHAN, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Timothy M. Cain, District Judge. (6:13-cr-00116-TMC-1) Submitted: June 18, 2014 Decided: September 25, 2014 Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James B. Loggins, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerry Leroy McMahan, Jr., pled guilty pursuant to a plea agreement obligations, uttering in to one count violation counterfeit of each 18 of producing U.S.C. obligations, in § 471 violation counterfeit (2012), of 18 and of U.S.C. § 472 (2012), and was sentenced to seventy-two months in prison. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that he has reviewed the record in this case and found nonetheless no meritorious indicates that issues McMahan for wishes appeal. to Counsel challenge his upward departure sentence. McMahan has filed a pro se supplemental brief, which he asserts that the district court erred when it: in (1) imposed an upward departure sentence because the district court did not (a) provide a written statement articulating the reasons for its departure or relate its reasons to the Guidelines, or (b) properly calculate the extent of the departure; and (2) enhanced his offense level two levels for his possession of a dangerous weapon. responsive brief. The Government has declined to file a Concluding that the district court did not err, we affirm. After United States v. Booker, 543 U.S. 220 (2005), we review a sentence for reasonableness, discretion standard of review. using an abuse of Gall v. United States, 552 U.S. 2 38, 51 (2007). to ensure The first step in this review requires the court that the procedural error. (4th Cir. calculate district committed no significant United States v. Evans, 526 F.3d 155, 160-61 2008). (or court Procedural improperly errors calculating) include the failing Guidelines to range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence 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 . . . which it has made before the district court, we review for abuse of discretion and will reverse unless the court can conclude that the error was harmless. United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). and only if, this court finds the sentence If, procedurally reasonable can the court consider the substantive reasonableness of the sentence imposed. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We error by discern the no district procedural court. or Most substantive sentencing notably, review a of McMahan s sentencing hearing establishes that the district court correctly calculated McMahan s Guidelines range at thirty-sevento-forty-six months in prison, 3 including properly increasing McMahan s offense level two levels, pursuant to USSG § 2B5.1(b)(4) (2012), because he was in possession of a sawedoff shotgun at the time of his arrest. The opportunity sentence district to present under opportunity to court the afforded argument § 3553(a) allocute, and counsel regarding factors, ultimately an an adequate appropriate gave McMahan sentenced McMahan an to seventy-two months in prison, which was twenty-six months above the top of McMahan s recommended Guidelines range. court imposed an upward departure sentence The district based on the inadequacy of McMahan s criminal history category, in accordance with U.S. Sentencing Guidelines Manual § 4A1.3(a) (2012). We discern no error in the district court s method of calculating the extent of the departure, and find that the district court adequately articulated its reasons for the departure. hold that the district court s explanation sentence allows for sufficient appellate review. for Thus, we McMahan s See Carter, 564 F.3d at 328 ( [T]he district court must state in open court the particular reasons supporting its chosen sentence and set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking quotation marks omitted). 4 authority ) (internal We have examined the entire record in accordance with our obligations under issues for appeal. judgment. writing, Anders and have found no meritorious Accordingly, we affirm the district court s This Court requires that counsel inform McMahan, in of the right to petition United States for further review. the Supreme Court of the If McMahan requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on McMahan. We dispense with oral 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 5
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