US v. Jon Clement


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00174-1 Copies to all parties and the district court/agency. [999755128].. [15-4264]

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Appeal: 15-4264 Doc: 46 Filed: 02/16/2016 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4264 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JON PAUL CLEMENTS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:14-cr-00174-1) Submitted: January 28, 2016 Decided: February 16, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Thomas J. Gillooly, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Monica D. Coleman, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4264 Doc: 46 Filed: 02/16/2016 Pg: 2 of 6 PER CURIAM: Jon Paul Clements pled guilty, without a plea agreement, to four counts of distributing heroin, in violation of 21 U.S.C. § 841(a)(1) (2012). The district court sentenced him, as a career offender, to 168 months’ imprisonment, the bottom of the advisory Sentencing Guidelines range. his sentence. Clements timely appealed For the reasons that follow, we affirm. We review Clements’ sentence for reasonableness “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Such review entails appellate consideration procedural of both the reasonableness of the sentence. procedural reasonableness, we and Id. at 51. evaluate substantive In determining whether the district court committed significant procedural error, such as improperly calculating the advisory Guidelines range, failing to appropriately consider the 18 U.S.C. § 3553(a) (2012) factors, or selecting a sentence based on clearly erroneous facts. Id. at 49-51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). If we find no procedural error, then we examine the substantive reasonableness of the sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51; United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014). The sentence imposed must be “sufficient, but not greater than necessary,” to satisfy 2 Appeal: 15-4264 Doc: 46 Filed: 02/16/2016 the goals of sentencing. on appeal that a Pg: 3 of 6 See 18 U.S.C. § 3553(a). within- substantively reasonable. or We presume below-Guidelines sentence is United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). The defendant bears the burden to rebut this presumption “by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id. When reviewing for substantive reasonableness, this court “can reverse a sentence only if it is unreasonable, even if the sentence choice of the appellate court.” 722 F.3d 583, 590 (4th Cir. would not have been the United States v. Yooho Weon, 2013) (internal quotation marks omitted). Clements contends that his sentence is unreasonable because the court taking failed into impermissibly addressed his considered the weigh history dismissed the and and § 3553(a) factors characteristics, acquitted by and conduct when We disagree. fashioning Specifically, properly account sentencing him. In to 18 the Clements’ U.S.C. court sentence, § the 3553(a) noted that district sentencing while Clements’ court factors. offenses involved only a small quantity of heroin, this drug, along with pills, was a serious law enforcement problem in southern West Virginia, and that Clements’ “sentence need[ed] to send the message of deterrence to others who are involved in trafficking 3 Appeal: 15-4264 Doc: 46 Filed: 02/16/2016 Pg: 4 of 6 any kind of drugs but, in particular, heroin and pills.” The court also noted Clements’ “significant” criminal history and found that range was a sentence appropriate within and the career necessary to offender deter Guidelines Clements from engaging in crime and to protect the public from his criminal activity. directly All to of these several considerations § 3553(a) by the factors. court speak 18 U.S.C. See § 3553(a)(1) (“the nature and circumstances of the offense and the history and characteristics of the defendant”); 18 U.S.C. § 3553(a)(2)(A) (“the need for the sentence . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment”); 18 U.S.C. § 3553(a)(2)(B) (the need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the need “to protect the public from further crimes of the defendant”). Turning to Clements’ claim that the district erroneously considered dismissed and acquitted charges, read in context, the district court mentioned these events in responding to Clements’ request for a below-Guidelines sentence. During his allocution, Clements apologized, stating that he accepted responsibility for his actions and was trying to support his family. Remarking that actions carried more weight than words, the court noted Clements’ dismissed federal charges from 2010 and 2014, and observed that, within a month after being released following his 4 Appeal: 15-4264 Doc: 46 acquittal on Filed: 02/16/2016 another federal Pg: 5 of 6 charge in 2014, Clements pled guilty to a state drug charge, and the next month had resumed selling drugs. The court found that Clements’ actions demonstrated that he had learned nothing from his experience with the criminal justice system and, Guidelines sentence was appropriate. the acquitted and dismissed therefore, a within- Thus, the court considered conduct only in the context of rejecting Clements’ request for a below-Guidelines sentence. As to Clements’ claim that the district court failed to take into account his history and characteristics, specifically his difficult childhood and the lengthy gap between his 2011 career offender “district courts determining factors.” 2011). predicate the have weight offenses and extremely to be given his current broad each crimes, discretion of the § when 3553(a) United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. The record reflects that the district court “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.” United States v. Avila, 770 F.3d 1100, 1108 (4th Cir. 2014) (second alteration in original; internal quotation marks omitted). We conclude presumption sentence. of that Clements reasonableness has accorded failed his to rebut the within-Guidelines The court clearly considered the § 3553(a) factors, offered a reasoned explanation for the sentence it imposed, and 5 Appeal: 15-4264 Doc: 46 explained lesser its basis sentence. (2007). court Filed: 02/16/2016 The does Rita fact not for render rejecting v. that Pg: 6 of 6 United Clements his Clements’ States, 551 disagrees sentence arguments U.S. with for 338, the unreasonable. a 356 district Cf. Yooho Weon, 722 F.3d at 590. Finally, Clements contends that the district court erred by denying as moot his challenge to the assessment of two criminal history points, rather than one, for his 2014 West Virginia conviction for possession with intent to deliver marijuana. criminal history point in criminal history score because offender. Therefore, question the he did was district not affect sentenced court did The Clements’ as a not career err by concluding that Clements’ challenge was moot. Accordingly, we affirm Clements’ sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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