US v. Michael Eason

Filing 920090701

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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