US v. Michael Eason

Filing 920090701

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4713 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL JOSEPH EASON, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, Chief District Judge. (5:07-cr-00262-FL-1) Submitted: May 5, 2009 Decided: July 1, 2009 Before WILKINSON and Senior Circuit Judge. TRAXLER, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C., Jacksonville, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. MayParker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Joseph Eason appeals the 120-month departure sentence imposed by the district court following his plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), 924 (2000). Eason asserts that the district court erred by imposing a departure sentence without first affording him adequate notice that it planned to depart upward pursuant to U.S. Sentencing Guidelines Manual ("USSG") 4A1.3, p.s. Rule 32(h) of the Federal Rules of Criminal Procedure requires that the sentencing court give the parties reasonable notice that it a is considering basis a departure on a ground in not the Fed. its identified as possible for departure either presentence report or in a party's prehearing submission. R. Crim. P. order 32(h). In its the comments upward at sentencing the and written explaining departure, district court relied on USSG 5K2.21, p.s., as well as 4A1.3, p.s. The presentence report specifically identified USSG 5K2.21 as a possible ground for upward departure. Eason 4A1.3 was not prejudiced because in the its We are satisfied that district analysis court under cited USSG for principles echoed 5K2.21 and 18 U.S.C. 3553(a). Accordingly, we conclude that any error by the district court in failing to give such notice 2 was harmless. Eason lodges no further claim of error with respect to his sentence. We court. legal before therefore affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 3

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