US v. Matthew Dury

Filing 920090710

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4897 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MATTHEW JAMES DURY, Defendant Appellant.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) Submitted: June 11, 2009 Decided: 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 Affirmed in part; vacated and remanded in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 sentencing guidelines, reviewed 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 sentencing Dury was informed of his right supplemental brief. He has not done so. to file a pro se 2 preponderance of the evidence. United States v. Kiulin, 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 engaged pattern 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 offense; minor; USSG resulted in conviction (n.1). for conduct." 2G2.2(b)(5) comment. 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 statement 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) (internal quotations a omitted) (emphasis must original)). relevant Accordingly, sentencing court apply the 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 328-29. defense 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 3553(a) defendant, 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 whether district imposes 5 above, within-Guidelines sentence, it must place on the record an `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 would process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 6

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