US v. Darryl Terry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00116-H-1 Copies to all parties and the district court. [999560232]. [14-4659]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4659

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL TERRY,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Malcolm J. Howard,
Senior District Judge. (7:13-cr-00116-H-1)

Submitted:

March 26, 2015

Decided:

April 7, 2015

Before SHEDD, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darryl Terry pled guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012),
and was sentenced to 110 months’ imprisonment.

Terry appeals,

challenging the procedural reasonableness of his sentence.

For

the following reasons, we affirm.
At sentencing Terry sought a downward variance, asserting
that his personal history and characteristics were mitigating
factors

and

category

arguing

overstated

that,
the

in

essence,

seriousness

of

the

criminal

his

history

history.

The

district court denied Terry’s request and sentenced him at the
bottom of the Guidelines range.
On appeal, Terry asserts that the district court erred by
failing to address his arguments for a downward variance and
failing to explain why it rejected those arguments in imposing a
within-Guidelines sentence.

The Government responds that the

district court expressly rejected the variance request and its
reasons

were

Alternatively,

clear
the

based

Government

on

the

asserts

hearing’s

that

any

error

context.
by

the

district court was harmless.
A sentence is procedurally reasonable if the district court
properly calculates the defendant’s advisory Guidelines range,
gives the parties an opportunity to argue for an appropriate
sentence,

considers

the

§ 3553(a)
2

factors,

does

not

rely

on

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clearly erroneous facts, and sufficiently explains the selected
sentence.
As

we

See Gall v. United States, 552 U.S. 38, 49-51 (2007).

have

explained,

“[r]egardless

of

whether

the

district

court imposes an above, below, or within-Guidelines sentence, it
must place on the record an individualized assessment based on
the particular facts of the case before it.”

United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted).

The explanation must be sufficient to allow for

“meaningful appellate review,” such that we need “not guess at
the

district

court’s

rationale.”

Id.

at

329,

330

(internal

quotation marks omitted).
Where, as here, the defendant properly preserves the issue
of

procedural

reasonableness

below,

unless the error was harmless.
572, 576 (4th Cir. 2010).

this

court

must

reverse

United States v. Lynn, 592 F.3d

The government bears the burden of

demonstrating “that the error did not have a substantial and
injurious

effect

or

influence

on

the

result

[such

that

this

court] can say with fair assurance that the district court’s
explicit consideration of the defendant’s arguments would not
have affected the sentence imposed.”

United States v. Boulware,

604 F.3d 832, 838 (4th Cir. 2010) (internal quotation marks and
alterations omitted).
After reviewing the sentencing transcript, we conclude that
the district court’s explanation was insufficient to render the
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sentence procedurally reasonable.
address

why

it

variance

or

rejected

why

it

The court did not expressly

Terry’s

selected

a

arguments

110-month

failure constitutes procedural error.

for

a

downward

sentence.

Such

a

Lynn, 592 F.3d at 585.

Nevertheless, the government has satisfied its burden of
demonstrating that the district court’s error was harmless.

The

district court confirmed its familiarity with Terry’s background
and

personal

sentencing

circumstances

factors

when

as

it

relevant

adopted

the

to

the

§ 3553(a)

presentence

report,

ordered child support, and referenced a letter in support of
Terry that

had

received

for

arguments

it

a

and

downward

read.

variance

Additionally,
were

not

especially in light of his criminal history.
F.3d

at

839-40

defendant’s

(explaining

arguments

for

a

sentencing

transcript

that

comparative

lower

sentence

reveals

that

persuasive,

See Boulware, 604

is

weakness
one

decline to remand a case for further explanation).
the

Terry’s

the

of

reason

a
to

Moreover,

district

court

considered Terry’s arguments for a downward variance, as this
was

the

imposed

only

issue

sentence

arguments.

contested

immediately

at

sentencing,

after

hearing

and
the

the

court

attorneys’

Thus, we are persuaded that, in this case, any error

in the district court’s explanation for the sentence it imposed
is harmless and that remand is not warranted.

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Accordingly, we affirm Terry’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

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