US v. Gerard Fenner

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00115-BR-1. Copies to all parties and the district court/agency. [999586685]. [14-4757]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4757

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERARD FENNER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
W. Earl Britt, Senior
District Judge. (4:12-cr-00115-BR-1)

Submitted:

April 30, 2015

Before AGEE and
Circuit Judge.

FLOYD,

Decided:

Circuit

Judges,

and

May 20, 2015

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Lynne L. Reid, L.L. REID LAW, Chapel Hill, 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Unpublished opinions are not binding precedent in this circuit.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:
Gerard

Fenner

appeals

imposed

upon

imprisonment

from

remand

the
for

63-month

term

resentencing.

of

Fenner

pleaded guilty without a written plea agreement to one count of
possessing a firearm and ammunition by a felon, in violation of
18

U.S.C.

district

§§ 922(g),
court

924

(2012).

procedurally

explain its sentence.

Fenner

erred

in

argues

failing

to

that

the

adequately

He contends that the court did not fully

credit his rehabilitative efforts in prison and did not state
why it rejected his argument for a 51-month sentence.
also

asserts

that

the

sentence

is

substantively

Fenner

unreasonable

because it is greater than necessary to comply with the purposes
of sentencing.

We affirm.

We review a sentence for reasonableness, applying an abuse
of discretion standard.
(2007).

The

court

Gall v. United States, 552 U.S. 38, 46

first

reviews

for

significant

procedural

error, and if the sentence is free from such error, it then
considers substantive reasonableness.

Id. at 51.

Procedural

error includes improperly calculating the Sentencing Guidelines
range, treating the Guidelines range as mandatory, failing to
consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to
adequately explain the selected sentence.
explain

the

sentence,

the

district

Id.

court

To adequately
must

make

an

“individualized assessment” by applying the relevant § 3553(a)
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factors to the case’s specific circumstances.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).

United States v.
The individualized

assessment need not be elaborate or lengthy, but it must be
adequate

to

allow

Substantive

meaningful

reasonableness

appellate

is

review.

determined

by

Id.

at

330.

considering

the

totality of the circumstances, and if the sentence is within the
properly-calculated

Guidelines

range,

presumption of reasonableness.

this

court

applies

a

United States v. Strieper, 666

F.3d 288, 295 (4th Cir. 2012).
Fenner argues that the district court procedurally erred in
failing

to

adequately

replies

that

the

sentencing

explain

district

rationale

argument

for

sentence.

court

and

rehabilitative efforts.
Fenner’s

its

The

sufficiently

considered

Government

explained

Fenner’s

its

recent

Here, the district court listened to
a

low-end

Guidelines

sentence.

In

imposing the sentence, the court referenced Fenner’s completion
of his GED.

The court explicitly stated that it had considered

the § 3553(a) factors.
Fenner

from

a

life

of

The court reasoned that efforts to deter
crime

have

failed

and

that

he

has

a

history of violence and drug felonies, both things from which
the public needs to be secure.

We conclude that the court

sufficiently considered Fenner’s request for a 51-month sentence
and its reasoning was adequate to permit meaningful review.
United

States

v.

Worley,

685

F.3d
3

404,

410

(4th

Cir.

See
2012)

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(explaining that while the district court did not explicitly
address most of the defendant’s arguments about postsentencing
rehabilitation, the court has “never required a sentencing court
to

discuss

each

§

3553(a)

(citation omitted)).

factor

in

a

‘checklist

fashion’”

Therefore, we find no procedural error.

Fenner argues that his recent rehabilitative efforts are
better evidence of his character than his past criminal conduct
and that the court’s sentence does not reflect consideration of
this.

Therefore,

circumstances,

he

the

contends,

sentence

under

is

the

totality

substantively

of

the

unreasonable

because it is greater than necessary to comply with the purposes
of

sentencing.

The

Government

argues

that

Fenner’s

recent

activity was not sufficient to overcome his violent criminal
history and numerous supervision violations.

“Any sentence that

is within or below a properly calculated Guidelines range is
presumptively
can

only

be

unreasonable
factors.”

[substantively]
rebutted
when

by

measured

reasonable.
showing
against

Such

that
the

18

the

a

presumption
sentence

U.S.C. §

is

3553(a)

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.) (citations omitted), cert. denied, 135 S. Ct. 421 (2014).
It was reasonable for the district court to conclude that
Fenner’s efforts at rehabilitation during his period of federal
imprisonment

were

not

substantial

enough

to

outweigh

the

countervailing evidence of the need to deter Fenner from further
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criminal activity and to protect the public.

Further, although

obtaining a GED and completing a drug program is commendable,
completion of an art class and not testing positive for drugs or
alcohol while in prison are not extraordinary.

We therefore

conclude that Fenner has not met his burden of rebutting the
presumption that the within-Guidelines sentence is substantively
reasonable.
Accordingly, we affirm the sentence.

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

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