United States v. Tony Swann , 526 F. App'x 265 ( 2013 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4729
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    TONY LEE SWANN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   William L. Osteen,
    Jr., Chief District Judge. (1:11-cr-00078-WO-1)
    Submitted:   April 19, 2013                       Decided:   May 10, 2013
    Before KING and    DAVIS,     Circuit   Judges,   and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
    Carolina, for Appellant.   Michael A. DeFranco, Assistant United
    States Attorney, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Tony Lee Swann appeals his conviction and twenty-two
    months     sentence       entered    pursuant         to     his    guilty       plea   to
    possession     of    a    firearm   by   a       convicted    felon.        On    appeal,
    counsel has filed a brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967), asserting that there are no meritorious issues
    for   appeal        but    questioning           whether     Swann’s     prior      state
    conviction for involuntary manslaughter was a predicate felony
    and whether Swann’s sentence was reasonable. 1                     Swann has filed a
    pro   se   supplemental       brief,     rearguing          the    issues    raised     by
    counsel.     We affirm.
    
    18 U.S.C. § 922
    (g)(1) (2006) prohibits the possession
    of a firearm by any person “who has been convicted in any court
    of, a crime punishable by imprisonment for a term exceeding one
    year.”       At     the     time    of   Swann’s           conviction,      involuntary
    manslaughter was a Class H felony.                    North Carolina v. Powell,
    
    426 S.E.2d 91
    , 92 (N.C. App. 1993).                    The presumptive range of
    imprisonment for a Class H felony was three years in prison,
    with a maximum punishment of ten years.                     
    Id.
        Swann was given to
    a three-year suspended sentence.                    Accordingly, as Swann could
    1
    The district court imposed a variance sentence above the
    advisory Guidelines range of 10-16 months in prison.
    2
    have been sentenced to over a year in prison, Swann’s prior
    conviction was a proper predicate under the statute. 2
    We     review    sentences        for   reasonableness           “under    a
    deferential           abuse-of-discretion          standard.”         Gall   v.      United
    States, 
    552 U.S. 38
    , 41 (2007).                    This review entails appellate
    consideration            of     both    the        procedural     and        substantive
    reasonableness of the sentence.                      
    Id. at 51
    .        In determining
    procedural           reasonableness,     we   consider     whether         the    district
    court      properly      calculated     the   defendant’s       advisory         Guidelines
    range,      gave       the    parties   an        opportunity    to    argue       for    an
    appropriate sentence, considered the 
    18 U.S.C. § 3553
    (a) (2006)
    factors, and sufficiently explained the selected sentence.                                
    Id. at 49-51
    .            If the sentence is free of significant procedural
    error, we review it for substantive reasonableness, “tak[ing]
    into account the totality of the circumstances.”                       
    Id. at 51
    .
    “When rendering a sentence, the district court must
    make       an    individualized         assessment        based       on     the     facts
    presented,” United States v. Carter, 
    564 F.3d 325
    , 328 (4th Cir.
    2
    In his pro se brief, Swann appears to argue that, because
    his sentence was suspended, it did not qualify as a predicate
    offense.   However, a qualifying predicate felony is one for
    which Swann himself could have been sentenced to a prison term
    exceeding one year. See United States v. Simmons, 
    649 F.3d 237
    ,
    247 (4th Cir. 2011). It is not required that Swann was actually
    sentenced to serve (or did in fact serve) over one year.
    Likewise, Swann’s assertion that his “involuntary” crime could
    not constitute a predicate offense is without support.
    3
    2009) (internal quotation marks and emphasis omitted), and must
    “adequately explain the chosen sentence to allow for meaningful
    appellate       review     and     to    promote       the    perception          of       fair
    sentencing.”           Gall, 
    552 U.S. at 50
    .                 When a district court
    imposes     a    sentence       that     falls     outside        of     the    applicable
    Guidelines      range,     we    consider       “whether     the       sentencing       court
    acted reasonably both with respect to its decision to impose
    such a sentence and with respect to the extent of the divergence
    from      the      sentencing            range.”             United            States        v.
    Hernandez-Villanueva, 
    473 F.3d 118
    , 123 (4th Cir. 2007).                                     In
    conducting      this     review,    we    “must    give      due    deference         to    the
    district    court’s       decision      that     the   §   3553(a)       factors,       on    a
    whole, justify the extent of the variance.”                            Gall, 
    552 U.S. at 51
    .
    Here, counsel does not point to any specific alleged
    error in Swann’s sentence.               In his pro se brief, Swann asserts
    that   he   did    not     have    an    opportunity         to    explain      his     prior
    conviction or to note that he was permitted to possess a gun
    under North Carolina law.                 However, the district court heard
    extensive argument by counsel regarding the circumstances of the
    prior conviction, and Swann declined to allocute.                                Moreover,
    Swann admitted in the factual basis that his prior conviction
    had not been expunged and that his civil rights had not been
    restored.
    4
    The district court clearly heard Swann’s arguments for
    leniency, but the court found the aggravating factors of Swann’s
    crime and background outweighed the mitigating factors.                             The
    court    properly       considered    the        nature      and   circumstances      of
    Swann’s conviction and the fact that his relevant conduct was
    more serious than mere possession of a firearm.                        Finally, the
    court gave specific, detailed reasoning for the upward variance.
    Accordingly, the sentence is not procedurally unreasonable.
    Next, we conclude that the sentence was substantively
    reasonable, as it was within the prescribed statutory range and
    resulted     from   the    district     court’s         proper     weighing   of    the
    relevant § 3553(a) factors.            Here, the district court explained
    at length its decision to sentence Swann above the Guidelines
    range, referring multiple times to Swann’s continued, illegal
    possession     of   a    firearm;     his       lack    of   credibility;     and   his
    reckless behavior while possessing the firearm.                        The district
    court’s decision to depart six months above the Guidelines range
    is supported by the record and does not constitute an abuse of
    discretion.
    This court requires that counsel inform her client, in
    writing of his right to petition the Supreme Court of the United
    States   for   further      review.         If    the     client   requests    that   a
    petition be filed, but counsel believes that such a petition
    would be frivolous, then counsel may move in this court for
    5
    leave to withdraw from representation.           Counsel=s motion must
    state that a copy thereof was served on the client.            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 this decisional process.
    AFFIRMED
    6
    

Document Info

Docket Number: 12-4729

Citation Numbers: 526 F. App'x 265

Judges: Davis, Hamilton, King, Per Curiam

Filed Date: 5/10/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023