US v. James Crouch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00299-JAB-1. Copies to all parties and the district court/agency. [998468201] [09-4248]

US v. James Crouch

Doc. 0

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4248 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EMMANUEL CROUCH, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00299-JAB-1) Submitted: October 28, 2010 Decided: November 18, 2010

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, William S. Trivette, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. John W. Stone, Jr., Acting United States Attorney, Michael F. Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: James Crouch appeals from his conviction and 215-month sentence following his guilty plea to one count of possession of firearms §§ 922(g), pursuant to by a convicted (2006). v. felon, in violation counsel U.S. of filed 744 18 a U.S.C. brief (1967),

924(e) Anders

Crouch's 386

California,

738,

stating that there were no meritorious issues for appeal, but questioning whether Crouch's sentence is reasonable. Crouch was

advised of his right to file a pro se supplemental brief but did not do so. At our direction, the parties filed briefs

addressing the impact of United States v. Carter, 564 F.3d 325 (4th Cir. 2009), and United States v. Lynn, 592 F.3d 572 (4th Cir. 2010). Because our review of the record discloses no

reversible error, we affirm Crouch's conviction and sentence. An appellate court reviews a sentence for

reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007). consideration of both the Id.

Gall v.

This review requires and substantive

procedural

reasonableness of a sentence.

First, the court must assess

whether the district court properly calculated the Guidelines range, considered the § 3553(a) factors, analyzed any arguments presented by the parties, and sufficiently explained the

selected sentence.

Gall, 552 U.S. at 49-50; see Lynn, 592 F.3d

at 576 ("[A]n individualized explanation must accompany every 2

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sentence."); Carter, 564 F.3d at 330 (same).

If the sentence is

procedurally reasonable, the reviewing court must consider the substantive totality of reasonableness the of the to sentence, see "examin[ing] the the

circumstances

whether

sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in [18 U.S.C.] § 3553(a) [(2006)]." United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010). Crouch argues that his sentence is procedurally

unreasonable because the district court did not consider the § 3553(a) statement factors of how and the failed factors to provide in an his individualized case. Because

applied

Crouch's counsel "dr[ew] arguments from § 3553 for a sentence different than the one ultimately imposed," counsel "alert[ed] the district court of its responsibility those to render and an a

individualized

explanation

addressing

arguments,"

claim of procedural error has thus been preserved.

Therefore,

this court reviews the error under the harmless error standard. Lynn, 592 F.3d at 579, 581-82. This standard requires that the

Government bear the burden of establishing that the error did not affect Crouch's substantial rights. United States v.

Robinson, 460 F.3d 550, 557 (4th Cir. 2006).

Specifically, the

Government "may avoid reversal only if it demonstrates that the error did not have a substantial 3 and injurious effect or

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influence on the result and we can say with fair assurance that the district court's explicit consideration of the defendant's arguments would not have affected the sentence imposed." States v. Boulware, 604 F.3d 832, 838 (4th Cir. United 2010)

(alterations and internal quotation marks omitted). We have reviewed the record and find that any error in this case was harmless, as we do not doubt that the district court assessed Crouch's argument in applying the § 3553(a)

factors.

See id. at 839. contained in

The district court considered the Crouch's presentence report, and

information

listened to the parties' statements and arguments. Crouch's sentence, the court stated that it had

In imposing considered

Crouch's history and characteristics, as well as the nature and circumstance of the offense. Moreover, Crouch's arguments in

favor of a lower sentence, which included hardship to his family and a difficult upbringing, were weak. the district court considered Crouch's Because it appears that argument for a lower

sentence, and in light of the weakness of that argument, the lack of a detailed individualized explanation for the rejection of Crouch's argument does not impair our ability to review the sentence. Thus, any procedural error was harmless. Having determined that there is no reversible

procedural error, we consider the substantive reasonableness of the sentence, taking into account 4 the totality of the

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circumstances.

Gall, 552 U.S. at 51.

Because Crouch's sentence

is within the properly calculated Guidelines range, we presume on appeal that it is substantively reasonable. Go, 517 F.3d 216, 218 (4th Cir. 2008). United States v.

The presumption may be

rebutted by a showing "that the sentence is unreasonable when measured against the § 3553(a) 375, factors." (4th Cir. United 2006) States v.

Montes-Pineda,

445

F.3d

379

(internal

quotation marks omitted).

Crouch has not made such a showing.

Accordingly, we hold that Crouch's sentence is procedurally and substantially reasonable. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. court. writing, Accordingly, we affirm the judgment of the district court requires to that counsel the inform Crouch, of in the

This of

the

right

petition

Supreme

Court

United States for further review.

If Crouch 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 We dispense

state that a copy thereof was served on Crouch.

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. AFFIRMED 5