US v. Matthew Dury
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee, v. MATTHEW JAMES DURY, Defendant Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00016-LHT-1)
June 11, 2009
July 10, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Matthew James Dury pled guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (2006). In sentencing Dury, the district court determined that
he had engaged in a pattern of activity involving the sexual abuse or exploitation of a minor and consequently enhanced
Dury's offense level five levels pursuant to U.S. Sentencing Guidelines Manual ("USSG") § 2G2.2(b)(5) (2007). The district
court then sentenced Dury to 204 months' imprisonment, which fell within his advisory guidelines range. On appeal, counsel
for Dury has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting that the district court erred in applying the USSG § 2G2.2(b)(5) enhancement. This court reviews sentencing enhancements under a
mixed standard of review: findings of fact are subject to a clearly erroneous of standard the and legal conclusions, are including de
interpretation novo. 2006). a
United States v. Moreland, 437 F.3d 424, 433 (4th Cir. The Government need only establish the facts supporting enhancement under USSG § 2G2.2(b)(5) by a
Dury was informed of his right supplemental brief. He has not done so.
360 F.3d 456, 460 (4th Cir. 2004). Section enhancement if a 2G2.2(b)(5) defendant provides in a for a five of level
activity USSG sexual
involving the sexual abuse or exploitation of a minor. § 2G2.2(b)(5). A "pattern of activity involving the
abuse or exploitation of a minor" is defined as "any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (B) involved such (A) the occurred same during or the (C) course of the a
Dury first suggests that the district court erred in enhancing his sentence based on a statement he gave to law
enforcement because his statement lacks reliability. reviewed the record and determine that Dury's
We have was
sufficiently reliable that the district court did not err in relying on it in imposing the § 2G2.2(b)(5) enhancement. Dury next suggests that the district court erred in enhancing his sentence pursuant to USSG § 2G2.2(b)(5) based on a state conviction for simple assault. The charging document in
that case stated that Dury held a thirteen-year-old child on a couch and attempted to kiss her. 3 Accordingly, we find no error
in the application of the enhancement. States, 544 U.S. 13, 26 (2005).
See Shepard v. United
In accordance with Anders, we have thoroughly reviewed the record and find no infirmity that calls Dury's conviction into question. We conclude, however, that Dury's sentence must
be vacated as the district court's explanation of its exercise of discretionary sentencing authority does not pass muster under United States v. Carter, 564 F.3d 325 (4th Cir. 2009). This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). In
reviewing a sentence, the appellate court must first ensure that the district court committed no significant procedural error, such as failing to adequately explain the chosen sentence. 128 S. Ct. at 597. Gall
If there are no procedural errors, then the
appellate court considers the substantive reasonableness of the sentence. Id. "When rendering a sentence, the district court must make an individualized assessment based on the facts presented." Carter, 564 F.3d at 328 (quoting Gall, 128 in S. the Ct. at 597)
§ 3553(a) factors to the particular facts presented and must 4
"state in open court" the particular reasons that support its chosen sentence. Id. Stating in open court the particular
reasons for a chosen sentence requires the district court to set forth enough to satisfy this court that the district court has a reasoned basis for its decision and has considered the parties' arguments. Id. Here, as in Carter, the district court did not justify Dury's Carter, sentence 564 F.3d with at an adequate At individualized sentencing, rationale. counsel
requested the district court to sentence Dury "at the lowest possible level." In support of her request, defense counsel In imposing a
referenced Dury's difficult upbringing and life.
sentence near the middle of Dury's advisory guidelines range, the district court stated only "pursuant to the Sentencing
Reform Act of 1984 and U.S. v. Booker, it is the judgment of the Court, having that considered the the factors Matthew noted James in Dury, 18 is U.S.C. hereby
committed to the custody of the U.S. Bureau of Prisons, to be imprisoned for a term of 204 months." The district court failed
to state how or which particular § 3553(a) factors applied to Dury, and the court's statement that it had considered the
§ 3553(a) factors could have applied to any sentence, regardless of the offense the or defendant. court Id. at 329. an "Regardless below, of or
`individualized assessment' based on the particular facts of the case before it." Id. at 330. The record here simply fails to
reveal why the district court deemed the sentence it imposed appropriate. Accordingly, while we affirm Dury's conviction, we
vacate Dury's sentence and remand for resentencing in light of Carter. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional
process. AFFIRMED IN PART; VACATED AND REMANDED IN PART
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?