US v. Andre Harvey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:11-cr-00026-BO-1 Copies to all parties and the district court/agency. [998886832].. [11-5076]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5076

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE LEMANE HARVEY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Terrence W. Boyle,
District Judge. (4:11-cr-00026-BO-1)

Submitted:

May 30, 2012

Decided:

July 2, 2012

Before SHEDD and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.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.
Jennifer P. May-Parker, Assistant United States Attorney, Yvonne
Victoria Watford-McKinney, 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Unpublished opinions are not binding precedent in this circuit.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:
Andre Lemane Harvey pleaded guilty to possession of a
firearm

after

punishable

by

having
a

term

previously
exceeding

been
one

convicted

year

of

violation of 18 U.S.C. § 922(g)(1) (2006).

of

a

crime

imprisonment,

in

The district court

sentenced Harvey to ninety-two months of imprisonment, and he
appeals.

Finding no error, we affirm.
On

appeal,

procedurally
Harvey

and

argues

Harvey

argues

substantively

that

the

that

the

unreasonable.

district

court

failed

sentence

is

Specifically,
to

adequately

explain the sentence and respond to the parties’ arguments, and
failed to take his history and characteristics and assistance to
authorities

sufficiently

into

account

in

fashioning

the

sentence.
We review a sentence for reasonableness, applying an
abuse of discretion standard.

Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009).

In so doing, we examine the sentence for

“significant procedural error,” including “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a)

[(2006)]

factors,

selecting

a

sentence

based

on

clearly erroneous facts, or failing to adequately explain the
chosen sentence.”

Gall, 552 U.S. at 51.
2

We will presume on

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appeal that a sentence within a properly calculated advisory
Guidelines range is reasonable.

United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
U.S.

338,

346-56

(2007)

(permitting

presumption

of

reasonableness for within-Guidelines sentence).
Moreover,
“individualized

a

district

assessment”

of

the

court

must

particular

conduct

facts

of

an
every

sentence, whether the court imposes a sentence above, below, or
within the Guidelines range.
325, 330 (4th Cir. 2009).

United States v. Carter, 564 F.3d
In addition, “[w]here [the parties]

present[] nonfrivolous reasons for imposing a . . . sentence
[outside the advisory Guidelines range,] . . . a district judge
should

address

the

party’s

rejected those arguments.”
and citation omitted).

arguments

and

explain

why

he

has

Id. at 328 (internal quotation marks

We have thoroughly reviewed the record

and conclude that the court responded to the parties’ arguments
regarding the sentence and adequately explained its reasons for
choosing the sentence imposed.

In addition, we conclude that

Harvey has failed to overcome the presumption of reasonableness
applied to his within-Guidelines sentence.
Accordingly, we affirm the judgment of the district
court.

We dispense with oral argument as the facts and legal

3

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

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