US v. Christopher Goins, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:10-cr-00107-FL-1. Copies to all parties and the district court/agency. [998849426].. [11-4419]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4419

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER HAROLD GOINS, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
District Judge. (7:10-cr-00107-FL-1)

Submitted:

April 18, 2012

Decided:

May 8, 2012

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Christopher Harold Goins, Jr., appeals the 240-month
sentence imposed following his conviction of one count of being
a convicted felon in possession of a firearm, in violation of 18
U.S.C. § 922(g) (2006), and one count of possession of a stolen
firearm, in violation of 18 U.S.C. § 922(j) (2006).

On appeal,

Goins argues that the district court’s upward departure resulted
in

a

substantively

unreasonable

sentence.

He

also

seeks

a

remand for correction of the written judgment to reflect the
district court’s oral pronouncement of his sentence.

Although

we affirm Goins’s sentence, we remand for the district court to
correct the written judgment.
We review a sentence imposed by a district court under
a

deferential

abuse

of

discretion

standard.

Gall

v.

United

States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010) (abuse of discretion standard of
review applicable when defendant properly preserves a claim of
sentencing error in district court “[b]y drawing arguments from
§ 3553

for

imposed”).

a

sentence
A

different

sentence

substantive reasonableness.

is

than

reviewed

the

one

for

procedural

Gall, 552 U.S. at 51.

ultimately
and

In reviewing

a variance sentence for substantive reasonableness, we assess
“whether the District Judge abused his discretion in determining
that

the

§ 3553(a)

factors

supported
2

[the

sentence]

and

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justified a substantial deviation from the Guidelines range.”
Id. at 56.

In doing so, we must “take into account the totality

of the circumstances, including [the] extent of any variance
from the Guideline range.”

Id. at 51.

Goins

the

argues

that

district

court

abused

its

discretion in granting the Government’s motion for an upward
departure based on the Guidelines’ underrepresentation of his
criminal history where his sentence was already enhanced based
on the application of the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)

(2006).

We

disagree.

The

district

court’s

decision to depart upward “reflects a thorough individualized
assessment of [Appellant’s] situation, in light of the § 3553(a)
factors.”

United States v. Rivera-Santana, 668 F.3d 95, 106

(4th Cir. 2012).
history

of

The court thoroughly explained that Goins’s

violent

behavior

and

recidivism

and

the

need

to

protect the public and promote respect for the law warranted a
240-month sentence.
not

abuse

its

Accordingly, we conclude that the court did

discretion

by

departing

upward

to

a

240-month

sentence.
Although

we

affirm

Goins’s

correction of the written judgment.
court

ordered

that

Goins’s

sentence,

we

remand

for

At sentencing, the district

federal

sentence

be

served

concurrently with any not-yet-imposed state sentence involving
the same firearm.

See Setser v. United States, No. 10-7387,
3

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WL

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district

1019970,
court

consecutively

or

at
to

*3

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(U.S.

order

Mar.

that

concurrently

28,

the

with

a

2012)

federal
future

(permitting
sentence

state

a

run

sentence).

The amended written judgment, however, orders that the sentence
run concurrently with “any state sentencing the defendant is now
serving.”

Where there is a conflict between a district court’s

written judgment and its oral pronouncement of the sentence, the
oral sentence controls.

United States v. Osborne, 345 F.3d 281,

283 n.1 (4th Cir. 2003) (citing United States v. Morse, 344 F.2d
27, 30 n.1 (4th Cir. 1965)).

The remedy for such a conflict is

to remand to the district court with instructions to correct the
written judgment to conform to the oral sentence.
F.2d at 30-31 & n.1.

Morse, 344

We reject the Government’s suggestion that

the discrepancy between the oral prouncement of sentence and the
written judgment is harmless.
For the foregoing reasons, we affirm Goins’s sentence
but remand with instructions to correct the written judgment to
reflect

the

sentence.
legal
before

district

oral

pronouncement

of

Goins’s

We dispense with oral argument because the facts and

contentions
the

court’s

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED AND REMANDED

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