US v. Denis Kearney
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:15-cr-00125-JMC-1 Copies to all parties and the district court/agency. .. [15-4594]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
DENIS B.L. KEARNEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District Judge.
December 15, 2016
January 18, 2017
Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Affirmed and remanded by unpublished per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Unpublished opinions are not binding precedent in this circuit.
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Denis B.L. Kearney appeals his sentence of 77 months of
violation of 18 U.S.C. § 371 (2012); and for purchasing a firearm
with false identification, in violation of 18 U.S.C. § 922(a)(6)
Appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
sentence, but remand to the district court to correct a clerical
error in the district court’s judgment.
A guilty plea is valid where the defendant voluntarily,
awareness of the relevant circumstances and likely consequences.”
(internal quotation marks omitted).
Before accepting a guilty
plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis.
Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Because Kearney neither raised an objection during the Fed.
R. Crim. P. 11 proceeding nor moved to withdraw his guilty plea in
the district court, we review his Rule 11 proceeding for plain
United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014).
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Our review of the record reveals that the district court fully
complied with Rule 11 in accepting Kearney’s guilty plea after a
Accordingly, we conclude that his plea was
knowing and voluntary, see Fisher, 711 F.3d at 464, and thus “final
and binding,” United States v. Lambey, 974 F.2d 1389, 1394 (4th
Cir. 1992) (en banc).
We review Kearney’s sentence for reasonableness “under a
McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)), cert. denied, 137 S. Ct. 320
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
552 U.S. at 51.
We presume that a sentence imposed within the
properly calculated Sentencing Guidelines range is reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and conclude that the court
properly calculated the Guidelines range, treated the Guidelines
as advisory rather than mandatory, gave the parties an opportunity
to argue for an appropriate sentence, considered the 18 U.S.C.
erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Kearney’s sentence of 77 months fell within the range
Kearney’s sentence is reasonable.
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incorrectly identifies the firearm offense to which Kearney pled
Rather than listing 18 U.S.C. § 922(a)(6), the judgment
lists 18 U.S.C. §§ 922(g)(1), 924(a)(2), the applicable section
numbers for Count 3 of the indictment, which was dismissed.
order to prevent confusion over whether the offense Kearney was
convicted of was Count 2 or Count 3, we remand this case to the
district court to correct this clerical error pursuant to Fed. R.
Crim. P. 36.
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal.
therefore affirm Kearney’s conviction and sentence but remand to
the district court for the limited purpose of correcting the
clerical error in the judgment.
This court requires that counsel
inform Kearney, in writing, of the right to petition the Supreme
Court of the United States for further review. If Kearney 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 Kearney.
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 AND REMANDED
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