US v. Antonio Frazier
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cr-00062-JAG-1. Copies to all parties and the district court. [999649657]. [15-4047]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO LAMONT FRAZIER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:14−cr−00062−JAG−1)
Submitted:
May 29, 2015
Decided:
August 28, 2015
Before WILKINSON, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C.
Appellate
Defender,
Virginia,
Attorney,
Assistant
ATTORNEY,
Kamens, Federal Public Defender, Patrick L. Bryant,
Attorney, Mary E. Maguire, Assistant Federal Public
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
for Appellant.
Dana J. Boente, United States
Alexandria, Virginia, Michael A. Jagels, Special
United States Attorney, OFFICE OF THE UNITED STATES
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Antonio
Lamont
Frazier
pleaded
guilty
without
a
plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1).
The presentence
report (“PSR”) calculated a Sentencing Guidelines range of 84105 months’ imprisonment.
The district court sentenced Frazier
to the statutory maximum of 120 months’ imprisonment.
Frazier
appeals
his
sentence,
and substantive reasonableness.
challenging
its
procedural
We affirm.
I.
A.
In
January
2014,
Frazier
was
approached
housing project in Richmond, Virginia.
slipped
and
fell.
As
Frazier
lay
by
police
in
a
He began to run, but he
on
the
ground,
officers
observed a black semi-automatic Ruger 9mm handgun in his hand.
Frazier was arrested.
A search of his person revealed a clear,
plastic sandwich bag that contained seven individually wrapped
plastic bag corners, which Frazier reported contained heroin.
B.
Frazier
was
indicted
and
pleaded
guilty
without
a
plea
agreement to one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1).
The Presentence
Investigation Report (“PSR”) computed his base offense level as
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based
on
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two
prior
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felony
convictions
for
a
controlled
substance offense and for a crime of violence, as defined in
United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2 (2014).
The prior conviction for a crime of violence was for possession
of
a
short-barrel
conviction
was
for
shotgun,
while
possession
of
the
controlled
heroin
with
substance
intent
to
distribute.
The PSR noted that Frazier possessed the 9mm handgun in
connection with another offense and enhanced his offense level
by four.
Frazier’s offense level was decreased by three levels
for acceptance of responsibility, resulting in a total offense
level of 25.
Together with a criminal history category of IV,
Frazier’s Guidelines range was 84-105 months’ imprisonment. 1
Frazier did not object to the PSR’s Guidelines range, but
he did ask the district court to vary down from the range and
impose a sentence of 60 months’ imprisonment.
the
parties’
arguments
and
each
factor
After considering
under
18
U.S.C.
§ 3553(a), the court varied up from the Guidelines range and
1
According to Frazier, had the conviction for possession of
a short-barrel shotgun not counted as a crime of violence, his
base offense level would have been 22 and his Guidelines range
would have been 70-87 months’ imprisonment.
While we believe
the correct base offense level would have been 20, with a
Guidelines range of 57-71 months’ imprisonment, the difference
does not affect our analysis.
3
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sentenced
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Frazier
to
the
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statutory
maximum
of
120
months’
imprisonment.
Frazier filed a timely appeal.
II.
A.
The Guidelines provide for an enhancement to the sentence
of
a
“career
offender”
if,
among
other
requirements,
the
defendant has at least two prior felony convictions for either a
“crime
of
violence”
§ 4B1.1(a).
relevant
The
part
or
a
controlled
Guidelines
as
an
define
offense
that
a
substance
“crime
“is
of
[the]
offense.
violence”
burglary
in
of
a
dwelling, arson, or extortion, involves use of explosives” or,
in what is known as the residual clause, “otherwise involves
conduct
that
presents
injury to another.”
a
serious
potential
risk
of
physical
§ 4B1.2(a)(2).
B.
Frazier
challenges
the
procedural
reasonableness
of
his
sentence on two grounds.
First, he argues that the district
court
his
erred
by
enhancing
sentence
under
the
Guidelines
residual clause because that clause is unconstitutionally vague.
Second,
Frazier
contends
that
his
prior
conviction
for
possession of a short-barrel shotgun does not fall within the
Guidelines residual clause definition of “crime of violence,”
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because it is not similar, in kind or in degree of risk posed,
to the offenses enumerated within § 4B1.2.
Because Frazier raises these claims for the first time on
appeal, we review for plain error.
F.3d 572, 577 (4th Cir. 2010).
United States v. Lynn, 592
To meet his burden, Frazier must
show that an error (1) was made, (2) is plain, and (3) affects
his substantial rights.
Id.
If Frazier makes this showing, we
have discretion to remedy the error, and will do so “only if the
error
‘seriously
affect[s]
the
fairness,
reputation of judicial proceedings.’”
integrity
or
public
Puckett v. United States,
556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
An error is plain when it is “clear or obvious,” meaning
that
“the
settled
law
of
the
Supreme
Court
or
this
[court]
establishes that an error has occurred,” or, in some cases, when
authority from other circuits is unanimous.
Carthorne,
726
F.3d
503,
516
&
n.14
(4th
United States v.
Cir.
2013).
In
assessing a defendant’s claim, an error need only be plain by
the time of appellate review.
Henderson v. United States, 133
S. Ct. 1121, 1130 (2013).
In Johnson v. United States, 135 S. Ct. 2551, 2557 (2015),
the Supreme Court held that the residual clause of the Armed
Career Criminal Act (the “ACCA”) is unconstitutionally vague.
Because the ACCA residual clause and the Guidelines residual
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clause are “substantially similar,” United States v. Seay, 553
F.3d 732, 738 (4th Cir. 2009), this case presents the issue of
whether
the
holding
in
Johnson
extends
to
the
Guidelines
residual clause. 2
We
assume
without
deciding
that
plain
error
occurred,
meaning that Frazier’s proper Guidelines range should have been
either 57-71 or 70-87 months in prison.
error
to
affect
a
defendant’s
Nonetheless, for an
substantial
rights,
“he
must
demonstrate that it ‘affected the outcome of the district court
proceedings.’”
U.S.
at
734).
Puckett, 556 U.S. at 135 (quoting Olano, 507
As
applied
here,
Frazier
must
point
to
“a
nonspeculative basis in the record to conclude that the district
court would have imposed a lower sentence but for the error in
calculating [the defendant’s] offense level.”
United States v.
Knight, 606 F.3d 171, 180 (4th Cir. 2010).
Frazier
fails
to
make
this
showing.
Not
only
did
the
district court reject Frazier’s request for a downward variant
sentence, but it also chose to vary upward to the statutory
maximum
prison
term
for
the
2
offense,
reasoning
that
In United States v. Hood, 628 F.3d 669, 670 (4th Cir.
2010),
we
held
that
possession
of
a
sawed-off
shotgun
constitutes a “crime of violence” under the Guidelines residual
clause.
Frazier acknowledges that his arguments are currently
foreclosed by Hood and, of course, the district court did not
have the benefit of the Supreme Court’s guidance in Johnson when
it sentenced Frazier.
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“[g]iven . . . the danger to the public and the prior criminal
history,
and . . . the
fact
that
the
longest
stretches
of
noncriminal behavior occur when [Frazier is] in prison, I think
that a sentence of 120 months . . . is sufficient but does not
exceed the amount of time necessary to achieve the goals of
sentencing.”
J.A. 98.
On this record, it would be sheer speculation to conclude
that the district court would have imposed a lesser sentence but
for the alleged error.
with
respect
to
the
Thus, we decline to find plain error
district
court’s
calculation
of
the
Guidelines range.
III.
We next consider Frazier’s argument that the district court
abused its discretion when it varied upward from the Guidelines
range in sentencing him.
Frazier contends that his sentence is
substantively unreasonable for three reasons.
that
the
district
court
did
not
sentences requested by the parties.
First, he argues
adequately
consider
the
The government asked for a
sentence within the Guidelines range, 3 while Frazier requested
that
the
district
court
vary
3
downward
to
60
months’
But the government noted that it would not object to a
sentence at the statutory maximum. J.A. 77.
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imprisonment.
placed
too
Third,
Second, Frazier asserts that the district court
much
insufficient
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weight
on
consideration
Frazier
contends
his
to
criminal
that
the
the
record
evidence
district
in
court
and
gave
mitigation.
performed
a
formulaic review of the 18 U.S.C. § 3553(a) factors, without
substantively considering each individual factor.
We review sentencing decisions for reasonableness under a
deferential
abuse-of-discretion
standard.
States, 552 U.S. 38, 46 (2007).
substantive
reasonableness
totality
the
of
by
“tak[ing]
circumstances,
has
discretion
to
v.
United
We consider the sentence’s
including
variance from the Guidelines range.”
court
Gall
sentence
a
into
the
account
extent
Id. at 51.
defendant
the
of
any
A district
outside
of
the
Guidelines range, so long as it considers the parties’ arguments
and provides a sufficient and reasoned basis for its departure
or variance.
See United States v. Diosdado-Star, 630 F.3d 359,
364-65
Cir.
(4th
2011)
(noting
that
the
district
court’s
decision to depart or vary does not change this court’s review
or the justification that the district court must provide).
minor
variance
from
the
Guidelines
range
significant justification than a major one.
requires
a
A
less
See Gall, 552 U.S.
at 50.
Before sentencing, the district court notified the parties
that it would consider sentencing Frazier above the Guidelines
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range, up to the statutory maximum.
The PSR suggested that an
upward departure from the Guidelines range might be warranted,
because
Frazier’s
convictions
and
adult
four
criminal
misdemeanor
record
contained
convictions
that
two
felony
were
not
considered in calculating his criminal history category.
See
U.S.S.G. § 4A1.3(a)(2) (noting that a district court may support
an upward departure by considering prior sentences not used in
calculating
the
defendant’s
criminal
history
category).
The
convictions that were not considered include abduction, assault
and battery, damage to property, carrying a concealed weapon,
and carrying a loaded shotgun.
The PSR also noted a potential
likelihood of Frazier’s committing other crimes, as he had been
found in violation of his supervised release on two occasions.
At
sentencing,
the
district
court
chose
not
to
depart.
Instead, it heard both parties’ arguments and considered each
§ 3553(a) factor in turn before deciding to impose a variant
sentence.
the
In considering Frazier’s history and characteristics,
district
substance
court
abuse
recognized
issues,
and
Frazier’s
history
of
difficult
depression.
upbringing,
But
the
court also noted that Frazier has “a long history of violent and
nonviolent crime, which includes a fondness for firearms.”
93.
J.A.
The court further noted Frazier’s “unrepentant criminal
activity,
his
past
assaultive
behavior, . . . his
past
possession of firearms, and the danger he poses to the public.”
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J.A. 97.
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In deciding to impose the statutory maximum prison
term, the district court stated that a 120-month sentence would
“reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence, and
protect
the
commit.”
from
further
crimes
that
Mr.
Frazier
may
J.A. 98.
We
find
reasonable.
parties’
public
that
The
Frazier’s
district
arguments
and
the
sentence
court
is
adequately
§ 3553(a)
factors
that an upward variance was appropriate.
substantively
considered
before
the
deciding
In so doing, it acted
well within its discretion.
IV.
For
district
facts
the
court.
and
materials
above
legal
before
reasons,
We
dispense
we
affirm
with
oral
the
argument
contentions
are
adequately
this
and
argument
court
judgment
of
the
because
the
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
10
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