US v. Kenneth Jefferson

Filing 920100524

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4757

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. KENNETH D. JEFFERSON, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Chief District Judge. (3:09-cr-00045-JRS-1)

Submitted:

April 26, 2010

Decided:

May 24, 2010

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Michael A. Jagels, Special Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Kenneth D. Jefferson appeals his jury conviction and 108-month sentence for possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). After reviewing of the error, record we and considering Jefferson's but

assignments

affirm

Jefferson's

conviction

vacate his sentence and remand for resentencing. Jefferson first asserts that the district court erred when it excluded from evidence a Government witness's prior We the

felony convictions, in accordance with Fed. R. Evid. 609(b). review the district court's determination regarding

admissibility of evidence for an abuse of discretion.

United "An

States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir. 2005).

abuse of discretion occurs only when a trial court has acted `arbitrarily' or `irrationally' in admitting evidence, when a court has failed to consider `judicially recognized factors

constraining its exercise' of discretion, or when it has relied on `erroneous factual or legal premises.'" citations omitted). Id. at 419 (internal

We conclude that the district court did not

abuse its discretion when it excluded evidence of the witness's prior convictions. Jefferson next asserts that the district court erred when it denied his request for an ex parte witness subpoena to recall the Government witness after 2 she was excused without

objection.

While an unjustified denial of a Fed. R. Crim. P.

17(b) application "may violate a defendant's right of compulsory process, such motions are committed to the trial court's sound discretion." United States v. Butler, 885 F.2d 195, 200

(4th Cir. 1989).

"In this circuit, a trial judge's discretion

to deny a [R]ule 17(b) motion made after the beginning of trial is comparable to his discretion in ruling on a motion for a continuance to secure a witness during trial." citation and quotation marks omitted). error in the district court's refusal Id. (internal

We find no reversible to grant Jefferson's

application. Jefferson last asserts that the district court erred when it imposed his 108-month United sentence v. without an adequate U.S. 220 for

explanation. (2005), this

After court

States a

Booker, on

543

reviews

sentence

appeal

reasonableness, using an abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51 (2007). The first step

in this review requires the court to ensure that the district court committed no significant procedural error. United Procedural

States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).

errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous 3 facts, or failing to

adequately

explain

the

chosen

sentence

--

including

an

explanation for any deviation from the Guidelines range." 552 U.S. at 51.

Gall,

If, and only if, this court finds the sentence

procedurally reasonable can the court consider the substantive reasonableness of the sentence imposed. United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009). We when it find that the district to 108 court months procedurally in prison erred

sentenced in open

Jefferson the

without the

stating

court

particular

reasons

supporting

sentence.

Not only did the district court fail to respond to

the arguments Jefferson raised at the sentencing hearing, the district court also failed to indicate that it even considered Jefferson's arguments in rendering the sentence or that it

considered the § 3553(a) factors. to the contrary, we simply

The Government's assertions presume that, under the

cannot

circumstances of this case, Jefferson would not have received a lesser sentence had the district court explicitly considered his non-frivolous arguments for a sentence at the bottom of his

Guidelines range.

See United States v. Thompson, 595 F.3d 544,

548 (4th Cir. 2010). Based on the foregoing, we affirm Jefferson's

conviction but vacate his sentence and remand to the district court for resentencing with oral in accordance because 4 with the this opinion. and We legal

dispense

argument

facts

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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