US v. Xavier Jennette

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:06-cr-00147-BR-1. Copies to all parties and the district court/agency. [998996538]. [11-4554]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4554

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
XAVIER VIDAL JENNETTE,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR-1)

Argued:

October 23, 2012

Decided:

December 6, 2012

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND,
P.A., Raleigh, North Carolina, for Appellant.
Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In
theft,

2006,
wire

a

jury

fraud,

convicted

and

Xavier

several

Jennette

related

of

offenses,

district court sentenced him to 121 months in prison.
appealed,

and

resentencing.
sentence

of

sentence.
producing

we

vacated

his

sentence

and

identity
and

the

Jennette

remanded

for

On remand, the district court again imposed a
121

months.

Jennette

now

appeals

this

second

Jennette contends that a court reporter’s delay in
a

transcript

that

he

needed

denied his right to due process.

for

his

first

appeal

He also contends that the

district court abused its discretion at resentencing by refusing
to consider certain evidence that he wanted to offer.

Finally,

he contends that the district court committed procedural error
by misapplying the Sentencing Guidelines and failing to consider
the factors listed in 18 U.S.C. § 3553(a).

Finding no merit in

these contentions, we affirm.

I.
Jennette’s first appeal proceeded slowly because the court
reporter responsible for producing transcripts of the trial and
sentencing

produced

them

in

piecemeal

fashion

and

did

not

produce them in total until 16 months after the deadline we had
imposed.

Once

the

transcripts

were

produced

and

the

appeal

proceeded, we vacated the sentence and remanded, finding that
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the district court had abused its discretion by denying a motion
from

Jennette’s

attorney

to

withdraw.

United

States

v.

Jennette, 387 Fed. Appx. 303 (4th Cir. 2010).
At the resentencing, Jennette called Anthony Wallace, a coconspirator
trial,

who

Wallace

testimony

and

had
had

testified
signed

stating

against

an

that

him

affidavit

Jennette

at

trial.

recanting

was

After

his

innocent.

trial

However,

Wallace later told Jennette’s counsel that the affidavit was
false, essentially recanting his recantation.
called

Wallace

refused

to

response

do

to

to
so,

each

testify

the

resentencing, 1

his

Fifth

at

asserting
question

Still, Jennette

he

was

but

Amendment

asked.

Wallace

rights

Jennette

in

then

unsuccessfully sought to introduce evidence that Wallace’s trial
testimony

implicating

Jennette

was

false

affidavit exonerating Jennette was true.

and

his

post-trial

Eventually, because

the district court decided that Wallace was not credible, it
disregarded all of his testimony.
The district court then again sentenced Jennette to 121
months.

The

new

sentence

reflected

the

district

court’s

application of the Sentencing Guidelines, including enhancements
for Jennette’s leadership role in criminal activity involving
1

Jennette asserted that this testimony could have rebutted
evidence the government offered in favor of enhancements and an
upward departure.

3

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five

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or

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more

individuals,

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U.S.S.G.

§

3B1.1(a);

position of trust, U.S.S.G. § 3B1.3; and
U.S.S.G. § 3C1.1.

abusing

a

obstructing justice.

Additionally, the new sentence reflected an

upward departure based upon the district court’s finding that
the

offense

level

underestimated

the

determined
seriousness

2B1.1, Application Notes 19.
“in

the

by

alternative,

the

the

of

Guidelines

the

substantially

offense.

U.S.S.G.

§

The district court also noted that

Court

would

impose

the

sentence as a variance under 18 U.S.C. § 3553(a).”

exact

same

S.J.A. 1349.

II.
We first address Jennette’s contention that the delay in
transcript production during his first appeal denied him due
process.

We review claims of due process violations de novo.

United States v. Shealy, 641 F.3d 627, 633 (4th Cir. 2011).
In determining whether delay in processing an appeal denies
a criminal defendant due process, we consider the “[l]ength of
delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.”

United States v.

Johnson, 732 F.2d 379, 381 (4th Cir. 1984)(quoting Barker v.
Wingo, 407 U.S. 514, 530 (1972)).

Here, we consider the fourth

factor, prejudice, to be dispositive because Jennette suffered
none.
sentence

We

first

for

a

note

that,

conviction

because

that
4

is

Jennette

not

being

is

serving

appealed,

a

and

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because we affirm the totality of the sentence imposed by the
district court—the same sentence the district court imposed in
the first sentencing—the delay in obtaining transcripts did not
add to Jennette’s prison sentence.

Jennette also claims that

Wallace may not have recanted his post-trial affidavit had the
appellate
earlier.

process

run

faster

and

the

resentencing

occurred

However, there is nothing in the record that allows a

reasonable inference that it was the passage of time, rather
than some other factor, which motivated Wallace to recant his
affidavit.

Jennette’s assertion otherwise is mere speculation,

which is insufficient to provide a factual basis for a claim of
prejudice.
Moreover, we reject Jennette’s assertion that the decision
of a witness to assert his Fifth Amendment rights is the type of
prejudice which has been found to support a due process claim.
The Supreme Court has observed that a delay may cause prejudice
if a witness dies or disappears during the delay or is unable to
recall accurately the events of the distant past.
U.S. at 532.

Barker, 407

Here, Wallace was available to testify at the

resentencing, and there is no indication that his memory was
impaired; he simply chose to assert his Fifth Amendment rights.
Therefore,

Jennette

was

not

prejudiced

support a due process claim.

5

in

a

way

that

would

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III.
We

next

address

Jennette’s

contention

that

the

district

court erred by refusing to admit evidence that he wanted to
offer for the purpose of showing which of Wallace’s conflicting
stories was true.
of discretion.

We review this evidentiary ruling for abuse

United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010).
At resentencing, the district court was aware of Wallace’s
trial testimony, his affidavit recanting that testimony, and his
recantation of that recantation.

The district court properly

considered Wallace’s credibility and then determined that his
credibility was so lacking that the court would not consider any
of Wallace’s testimony.
F.3d

452,

afforded

463
the

(4th

Cir.

district

2011)

court’s

sentencing).

Thus,

discretion

refusing

by

See United States v. McKenzie-Gude, 671

the
to

(noting

the

credibility

district
rely

court

on

great

deference

determinations
did

Wallace

not
or

abuse

any

at
its

evidence

offered to support or refute any version of Wallace’s testimony,
or to prolong the hearing to allow the presentation of any other
evidence concerning Wallace’s completely discounted testimony.

IV.
We

turn

next

to

Jennette’s

challenges

to

the

district

court’s application of the Sentencing Guidelines and 18 U.S.C. §
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3553(a).

Filed: 12/06/2012

In

reviewing

outside,

or

apply

“deferential

a

any

significantly

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sentence,

outside

“whether

the

Guidelines

abuse-of-discretion

United States, 552 U.S. 38, 41 (2007).
“ensure

that

the

district

court

inside,

just

range,”

standard.”

Gall

we
v.

Ordinarily, we first

committed

no

significant

procedural error.” Id. at 51. “If, and only if, we find the
sentence

procedurally

substantive

reasonable

reasonableness

abuse-of-discretion

of

the

standard.’”

can

we

sentence

United

‘consider
imposed

States

v.

the

under

Carter,

an
564

F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
In
“apply

imposing
the

a

criminal

relevant

§

sentence,

3553(a)

“this

is

not

to

say

district

factors

circumstances of the case before it.”
However,

a

that

to

court

the

must

specific

Carter, 564 F.3d at 328.
the

district

court

robotically tick through § 3553(a)’s every subsection,”

must

U.S. v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006), as long as the
district court makes an “individualized assessment based on the
facts presented.”

Gall, 552 U.S. at 50.

Here, the district judge had presided over Jennette’s fiveday trial, his initial two-day sentencing hearing, and the twoday

resentencing.

district

court

Throughout

demonstrated

the

sentencing

intimate

process,

familiarity

with

the
the

details of the case, even correcting Jennette’s counsel when he
made an assertion that was inconsistent with the presentence
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At both sentencing hearings, the district court heard

extensive arguments on the § 3553(a) factors and plainly gave
Jennette the individualized assessment required by Gall.

For

example, the district court noted that Jennette’s crime imposed
significant non-monetary harm on his victims and that Jennette
had lied under oath.

Thus, we conclude that Jennette received

the individualized sentence to which he is entitled.
Jennette also challenges the district court’s application
of the Sentencing Guidelines, specifically contending that it
erred in imposing enhancements and an upward departure.
the

district

court

had

erred

in

applying

Guidelines, the errors would be harmless.

the

Even if

Sentencing

As we held in United

States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011),
errors in applying the Sentencing Guidelines are harmless where,
even if the district court had applied the Guidelines properly,
it (1) would have imposed the same sentence and (2) the sentence
would have been reasonable.

Here, the district court stated

that it would have imposed the same sentence regardless of the
Guidelines calculation, and Jennette has not asserted that the
sentence was substantively unreasonable.
district

court’s

Guidelines

Thus, any error in the

calculation

harmless.

8

would

have

been

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V.
For the foregoing reasons, we affirm the sentence imposed
by the district court.
AFFIRMED

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