US v. Joseph Garrett

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00048-IMK-JSK-1, 1:14-cr-00057-IMK-JSK-1. Copies to all parties and the district court/agency. [999796028].. [15-4350]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4350

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH A. GARRETT,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge.
(1:14-cr-00048-IMK-JSK-1; 1:14-cr-00057-IMKJSK-1)

Submitted:

March 30, 2016

Decided:

April 15, 2016

Before DUNCAN, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant.
Shawn Angus Morgan, Assistant United
States Attorney, Clarksburg, West Virginia, Tara Noel Tighe,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In the superseding indictment returned in Case No. 1:14-cr00048-IMK-JSK-1 (N.D. W. Va.), the Government charged Joseph A.
Garrett with failing to update his sex offender registration, in
violation of 28 U.S.C. § 2250(a) (2012) (hereinafter “CR-48”).
Thereafter, in a separate criminal case, Case No. 1:14-cr-00057IMK-JSK-1 (N.D. W. Va.) (hereinafter “CR-57”), the Government
charged Garrett with being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012), and
possessing

an

unregistered

firearm

(specifically,

a

sawed-off

shotgun), in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871
(2012).

Garrett elected to plead guilty in CR-48, without the

benefit of a written plea agreement, but proceeded to a jury
trial in CR-57.

After a three-day trial at which the Government

presented the testimony of nine witnesses, the jury convicted
Garrett of both counts.

The district court sentenced Garrett to

a total of 147 months’ imprisonment, consisting of 120 months
(concurrent) on the charges in CR-57 and 27 months (consecutive)
in CR-48.

This appeal timely followed.

Garrett’s appellate attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there
are no nonfrivolous issues for appeal but asking us to review

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the

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sufficiency

reasonableness

of
of

the

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Government’s

Garrett’s

sentence. 2

declined to file a response brief.

evidence 1

trial

the

Government

The

and

has

For the reasons that follow,

we affirm the criminal judgment.
Garrett

first

challenges

the

sufficiency

of

the

Government’s evidence of his guilt of the crimes charged in CR57, asking us to review whether the district court erred in
denying Garrett’s Fed. R. Crim. P. 29 motion for a judgment of
acquittal.

We review that ruling de novo.

United States v.

Said, 798 F.3d 182, 193 (4th Cir.), petition for cert. filed,
No. 15-7332 (U.S. Dec. 8, 2015).

“A defendant challenging the

sufficiency of the evidence faces a heavy burden, as reversal
for insufficient evidence is reserved for the rare case where
the prosecution’s failure is clear.”

Id. at 194 (alteration and

internal quotation marks omitted).
We

must

uphold

a

jury’s

guilty

verdict

if

there

is

substantial evidence, viewed in the light most favorable to the

1

Counsel does not raise any suggested issues related to
Garrett’s guilty plea in CR-48.
2

After receiving notice that an Anders brief had been
filed, Garrett filed in this court a pro se pleading in which he
asserted that his trial attorney was ineffective for failing to
call a certain witness. But Garrett’s failure to identify, at a
minimum, what evidence this individual would have provided and
that counsel was aware that this individual possessed relevant
information, renders this claim a patent nonstarter.

3

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Government, to support it.

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United States v. Hamilton, 701 F.3d

404, 409 (4th Cir. 2012); see United States v. Cornell, 780 F.3d
616,

630

(4th

Cir.)

(defining

denied, 136 S. Ct. 127 (2015).
substantial
jury’s

evidence

to

of

evidence),

cert.

“In determining whether there is

support

determinations

substantial

a

verdict,

credibility

we

to

the

resolutions

and

defer

of

conflicts in the evidence, as they are within the sole province
of the jury and are not susceptible to judicial review.”
States

v.

Louthian,

756

F.3d

295,

303

(4th

Cir.)

United

(internal

quotation marks omitted), cert. denied, 135 S. Ct. 421 (2014).
We

have

reviewed

the

trial

transcript

and

conclude

that

the

Government’s evidence, which included the testimony of multiple
eyewitnesses,
more

than

coupled

supported

with
the

the

parties’
guilty

jury’s

factual
verdicts.

stipulations,
See United

States v. Reed, 780 F.3d 260, 271 (4th Cir.) (stating elements
of § 922(g) offense), cert. denied, 136 S. Ct. 167 (2015); see
also United States v. Jamison, 635 F.3d 962, 967-68 (7th Cir.
2011) (reciting elements of § 5861(d) offense).
Counsel

next

asks

us

to

evaluate

Garrett’s aggregate 147-month sentence.

the

reasonableness

of

We review a sentence

for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015).

In so

doing, we first examine the sentence for procedural error, which
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includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C. § 3553(a) (2012)] factors, selecting
a

sentence

based

on

clearly

erroneous

facts,

adequately explain the chosen sentence.”
111–12 (quoting Gall, 552 U.S. at 51).
substantive

reasonableness

of

the

or

failing

to

Lymas, 781 F.3d at
We then consider the

sentence,

affording

a

presumption of substantive reasonableness to any sentence that
is within or below a properly calculated Guidelines range.

See

Rita v. United States, 551 U.S. 338, 346–59 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence);
Louthian, 756 F.3d at 306.
Counsel
substantive

does
error

not
in

identify
Garrett’s

any

particular

sentence,

and

procedural
our

or

independent

review of the sentencing, including the computation of Garrett’s
Guidelines range, did not reveal any such error.

The district

court relied on and adopted the uncontested presentence report,
which properly calculated Garrett’s advisory Guidelines range.
The court also responded to the parties’ sentencing arguments
and provided a robust explanation for the selected sentence,
which it linked to the relevant § 3553(a) sentencing factors.
Finally, Garrett does not endeavor to overcome the presumption
of substantive reasonableness applied to his within-Guidelines
sentence, and our review of the record demonstrates no basis on
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which he could do so.

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See Louthian, 756 F.3d at 306 (explaining

that the presumption of substantive reasonableness afforded a
within-Guidelines sentence “can only be rebutted by showing that
the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors”).
In accordance with Anders, we have examined the entirety of
the records in this appeal for any nonfrivolous appellate issues
and

have

found

judgment.
writing,

none.

Accordingly,

we

affirm

the

criminal

This court requires that counsel inform Garrett, in
of

the

right

to

petition

United States for further review.

the

Supreme

Court

of

the

If Garrett requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Garrett.

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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