US v. Denis Kearney

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:15-cr-00125-JMC-1 Copies to all parties and the district court/agency. [1000005351].. [15-4594]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4594

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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.
(6:15-cr-00125-JMC-1)

Submitted:

December 15, 2016

Decided:

January 18, 2017

Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion.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
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Denis B.L. Kearney appeals his sentence of 77 months of
imprisonment

for

conspiracy

to

defraud

the

government,

in

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)
(2012).

Appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), concluding that there are no
meritorious

issues

sentence

reasonable.

is

for

appeal,
We

but

questioning

affirm

Kearney’s

whether

the

conviction

and

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,
knowingly,

and

intelligently

pleads

guilty

“with

sufficient

awareness of the relevant circumstances and likely consequences.”
United

States

v.

Fisher,

711

F.3d

(internal quotation marks omitted).

460,

464

(4th

Cir.

2013)

Before accepting a guilty

plea, a district court must ensure that the plea is knowing,
voluntary, and supported by an independent factual basis.

Fed. R.

Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th
Cir. 1991).
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
error.

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
thorough hearing.

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
deferential

abuse-of-discretion

standard.”

United

States

v.

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
(2016).

This review entails appellate consideration of both the

procedural and substantive reasonableness of the sentence.
552 U.S. at 51.

Gall,

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.
§ 3353(a)

factors,

selected

a

sentence

not

based

on

clearly

erroneous facts, and sufficiently explained the chosen sentence.
Furthermore, Kearney’s sentence of 77 months fell within the range
recommended

by

the

Guidelines.

Kearney’s sentence is reasonable.
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Therefore,

we

conclude

that

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we

note

that

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the

district

court’s

judgment

incorrectly identifies the firearm offense to which Kearney pled
guilty.

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.

In

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.

We

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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