US v. Jimmy Stout

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:05-cr-00007-RLV-DCK-1 Copies to all parties and the district court/agency. [998583452].. [09-4907]

Appeal: 09-4907

Document: 44

Date Filed: 05/05/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4907

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMY LANE STOUT,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:05-cr-00007-RLV-DCK-1)

Submitted:

March 7, 2011

Decided:

May 5, 2011

Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joshua D. Davey, MCGUIREWOODS, LLP, Charlotte, North Carolina,
for Appellant.
Amy Elizabeth Ray, Edward R. Ryan, Assistant
United
States
Attorneys,
Charlotte,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jimmy Lane Stout appeals from his conviction and 210month

total

sentence

imposed

following

his

guilty

plea

to

conspiracy to possess with intent to distribute a quantity of
methamphetamine

and

a

quantity

of

marijuana,

and

using

and

carrying a firearm during and in relation to a drug trafficking
offense.

Stout’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), addressing the obstruction of
justice enhancement imposed and the denial of a reduction for
acceptance

of

responsibility

after

Stout

absconded

prior

to

sentencing, but stating that there was no merit to the appeal.
Stout

filed

asserting

that

government’s
that

his

a

pro
he

se
should

motion

for

sentences

concurrently.

brief

on

not

a

reiterating
have

downward

the

drug

lost

counsel’s

the

benefit

departure,
and

and

firearm

issues,
of

the

requesting

charges

run

Our review of the record discloses no reversible

error; accordingly, we affirm Stout’s conviction and sentence.
We find that Stout’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11.
offenses

Stout was properly advised of his rights, the

charged,

sentence he faced.

and

the

mandatory

minimum

and

the

maximum

The court also determined that there was an

independent factual basis for the plea and that the plea was not

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coerced or influenced by any promises.

See United States v.

DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
This court reviews Stout’s sentence for reasonableness
See Gall v.

under a deferential abuse-of-discretion standard.
United States, 552 U.S. 38, 51 (2007).

In reviewing a sentence,

this court must first ensure that the district court properly
calculated the defendant’s advisory guideline range, considered
the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented

by

the

parties,

and

sufficiently

explained

the

selected sentence.

United States v. Carter, 564 F.3d 325, 330

(4th

The

Cir.

2009).

court

then

considers

the

substantive

reasonableness of the sentence imposed under the totality of the
circumstances.
We

Gall, 552 U.S. at 51.
review

determination

that

for
a

clear

defendant

error

a

district
justice.

obstructed

court’s
United

States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005).

Here, the

district court found that Stout obstructed justice by failing to
appear for sentencing as directed and by remaining a fugitive
for three years.

These facts are not disputed by Stout and are

sufficient to support the obstruction of justice enhancement.
U.S. Sentencing Guidelines Manual § 3C1.1, cmt. n.4(e) (2008).
Also,

an

indicates
criminal

enhancement
that

for

defendant

conduct,”

except

obstruction
has
in

not

of

accepted

justice

responsibility

“extraordinary
3

“ordinarily

cases

in

for

which

Appeal: 09-4907

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adjustments

Date Filed: 05/05/2011

under

both

§ 3E1.1, cmt. n.4.
case

as

would

§§ 3C1.1

and

Page: 4 of 5

3E1.1

may

apply.”

USSG

We find this is not such an extraordinary

allow

Stout

the

benefit

of

acceptance

of

responsibility in spite of his failure to appear for sentencing
and

prolonged

period

as

a

fugitive.

See

United

States

v.

Hudson, 272 F.3d 260, 263 (4th Cir. 2001).
Turning to the issues raised in Stout’s pro se brief,
we

find

no

error

by

the

sentencing

court

in

allowing

the

government to withdraw its motion for a downward departure when
Stout

failed

to

appear

for

sentencing

as

directed.

Also,

Stout’s challenge to the mandatory consecutive sentencing scheme
of 18 U.S.C. § 924(c)(1)(A)(i) (2006) has been rejected by the
Supreme Court in Abbott v. United States, 562 U.S. ___, 131 S.
Ct. 18 (2010); see United States v. Studifin, 240 F.3d 415 (4th
Cir. 2001).

Accordingly, we conclude that this claim is without

merit.
Finally,
determined

Stout’s

we

find

that

advisory

the

district

guideline

court

range,

correctly

provided

an

individualized analysis of the § 3553(a) factors as they apply
to Stout’s circumstances, analyzed the arguments presented by
the

parties,

and

acted

within

its

discretion

by

downward to a 150-month sentence on the drug charge.

departing
We find

that the 210-month total sentence imposed was not procedurally

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or substantively unreasonable, and therefore not an abuse of
discretion.

See Gall, 552 U.S. at 51.

As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
therefore affirm Stout’s conviction and sentence.
requires

that

counsel

inform

his

client,

in

We

This court

writing,

of

his

right to petition the Supreme Court of the United States for
further
filed,

review.
but

If

counsel

the

client

believes

requests

that

such

that
a

a

petition

petition

would

be
be

frivolous, then counsel may move in this court for leave to
withdraw from representation.

Counsel’s motion must state that

a copy thereof was served on the client.

We dispense 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

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