US v. Jon Clement

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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
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the goals of sentencing.
on

appeal

that

a

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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
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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
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acquittal

on

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another

federal

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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
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explained
lesser

its

basis

sentence.

(2007).
court

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The

does

Rita

fact

not

for

render

rejecting
v.

that

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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

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