US v. Jerry McMahan, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:13-cr-00116-TMC-1 Copies to all parties and the district court/agency. [999442913].. [13-4983]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4983

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY LEROY MCMAHAN, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:13-cr-00116-TMC-1)

Submitted:

June 18, 2014

Decided:

September 25, 2014

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

Affirmed by unpublished per curiam opinion.

James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.
Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jerry Leroy McMahan, Jr., pled guilty pursuant to a
plea

agreement

obligations,
uttering

in

to

one

count

violation

counterfeit

of

each
18

of

producing

U.S.C.

obligations,

in

§ 471

violation

counterfeit

(2012),
of

18

and

of

U.S.C.

§ 472 (2012), and was sentenced to seventy-two months in prison.
Counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that he has reviewed the record in this
case

and

found

nonetheless

no

meritorious

indicates

that

issues

McMahan

for

wishes

appeal.
to

Counsel

challenge

his

upward departure sentence.
McMahan

has

filed

a

pro

se

supplemental

brief,

which he asserts that the district court erred when it:

in
(1)

imposed an upward departure sentence because the district court
did not (a) provide a written statement articulating the reasons
for its departure or relate its reasons to the Guidelines, or
(b)

properly

calculate

the

extent

of

the

departure;

and

(2)

enhanced his offense level two levels for his possession of a
dangerous

weapon.

responsive brief.

The

Government

has

declined

to

file

a

Concluding that the district court did not

err, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review

a

sentence

for

reasonableness,

discretion standard of review.

using

an

abuse

of

Gall v. United States, 552 U.S.
2

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38, 51 (2007).
to

ensure

The first step in this review requires the court

that

the

procedural error.
(4th

Cir.

calculate

district

court

committed

no

significant

United States v. Evans, 526 F.3d 155, 160-61

2008).
(or

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Procedural

improperly

errors

calculating)

include
the

“failing

Guidelines

to

range,

treating the Guidelines as mandatory, failing to consider the
[18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.”

Gall, 552 U.S. at 51.

“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court,

we

review

for

abuse

of

discretion”

and

will

reverse

unless the court can conclude “that the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
and

only

if,

this

court

finds

the

sentence

If,

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
error

by

discern

the

no

district

procedural
court.

or

Most

substantive

sentencing

notably,

review

a

of

McMahan’s sentencing hearing establishes that the district court
correctly calculated McMahan’s Guidelines range at thirty-sevento-forty-six

months

in

prison,
3

including

properly

increasing

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McMahan’s

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offense

level

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two

levels,

pursuant

to

USSG

§ 2B5.1(b)(4) (2012), because he was in possession of a sawedoff shotgun at the time of his arrest.
The
opportunity
sentence

district
to

present

under

opportunity

to

court

the

afforded

argument

§ 3553(a)

allocute,

and

counsel

regarding
factors,

ultimately

an

an

adequate

appropriate

gave

McMahan

sentenced

McMahan

an
to

seventy-two months in prison, which was twenty-six months above
the top of McMahan’s recommended Guidelines range.
court

imposed

an

upward

departure

sentence

The district

based

on

the

inadequacy of McMahan’s criminal history category, in accordance
with U.S. Sentencing Guidelines Manual § 4A1.3(a) (2012).

We

discern no error in the district court’s method of calculating
the extent of the departure, and find that the district court
adequately articulated its reasons for the departure.
hold

that

the

district

court’s

explanation

sentence allows for sufficient appellate review.

for

Thus, we
McMahan’s

See Carter,

564 F.3d at 328 (“[T]he district court must state in open court
the particular reasons supporting its chosen sentence” and “set
forth

enough

to

satisfy

the

appellate

court

that

he

has

considered the parties’ arguments and has a reasoned basis for
exercising

his

own

legal

decisionmaking

quotation marks omitted).

4

authority”)

(internal

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We have examined the entire record in accordance with
our

obligations

under

issues for appeal.
judgment.
writing,

Anders

and

have

found

no

meritorious

Accordingly, we affirm the district court’s

This Court requires that counsel inform McMahan, in
of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If McMahan requests that a

petition be filed, but counsel believes that such a petition
would 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 McMahan.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

Court

and

argument would not aid the decisional process.

AFFIRMED

5