United States v. Walter Raynard Lingard ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4217
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER RAYNARD LINGARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:17-cr-00560-RMG-1)
Submitted: November 1, 2018 Decided: November 21, 2018
Before KEENAN and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Alicia Vachira Penn, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Emily Evans
Limehouse, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Raynard Lingard pled guilty, without a plea agreement, to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal, but questioning whether the district court abused
its discretion in sentencing Lingard. Lingard has filed a pro se brief in which he asserts
that the district court plainly erred in failing to provide him with a clear opportunity to
allocute and erred in declining to vary downward. We affirm.
As to Lingard’s assertion that the district court erred in failing to expressly provide
him with the opportunity to allocute, because he did not raise this issue below, our review
is for plain error only. United States v. Engle, 676 F.3d 405, 424 (4th Cir. 2012). To
establish plain error, Lingard must demonstrate that: (1) there is an error; (2) the error is
plain; (3) the error affected his substantial rights, “which in the ordinary case means it
affected the outcome of the district court proceedings; and (4) the error seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id. (brackets
omitted).
“‘Before imposing sentence, the district court must address the defendant
personally in order to permit him to speak or present any information to mitigate the
sentence.’” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (quoting Fed.
R. Crim. P. 32(i)(4)(A)(ii)) (brackets and ellipsis omitted). “This rule is not satisfied by
merely affording the Defendant’s counsel the opportunity to speak.” Id. (internal
quotation marks omitted). “As the Supreme Court has noted, the most persuasive counsel
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may not be able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself.” Id. (brackets and internal quotation marks omitted).
The record makes clear that the district court provided Lingard with the
opportunity to speak and present mitigating evidence at sentencing. Lingard took
advantage of those opportunities and offered several mitigating statements to the court.
We thus perceive no error, plain or otherwise, in the district court’s efforts to conform
with Fed. R. Crim. P. 32(i)(4)(A)(ii). See United States v. Cole, 27 F.3d 996, 998 (4th
Cir. 1994) (noting that the “record must reflect that defendant knew that he had a right to
speak in mitigation”).
Lingard next argues that the district court erred in declining to vary downward
based upon Lingard’s state probation revocation sentence. “In assessing a challenge to a
sentencing court’s application of the Sentencing Guidelines, we review the court’s factual
findings for clear error and its legal conclusions de novo.” United States v. Oceanic
Illsabe Ltd., 889 F.3d 178, 194 (4th Cir. 2018). Under U.S. Sentencing Guidelines
Manual § 5G1.3(d) (2016), a district court is afforded discretion to run the sentence
concurrent to an earlier sentence if doing so would “achieve a reasonable punishment.”
Id. However, the commentary recommends that the federal sentence be imposed
consecutive, and not concurrent, to any state probation revocation sentence. Id. cmt.
n.4(C). As the district court noted, Lingard’s state sentence was the result of the
revocation of his probation; because Lingard was serving a state revocation sentence, the
district court did not err in refusing Lingard’s request for a downward variance.
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In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. To the extent counsel challenges the
reasonableness of Lingard’s sentence, we conclude that the district court did not
procedurally err in imposing Lingard’s sentence and that Lingard fails to rebut the
presumption that his within-Guidelines sentence is substantively reasonable. Gall v.
United States, 552 U.S. 38, 41 (2007); United States v. Vinson, 852 F.3d 333, 357-58 (4th
Cir. 2017).
We therefore affirm the district court’s judgment. This court requires that counsel
inform Lingard, in writing, of the right to petition the Supreme Court of the United States
for further review. If Lingard 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 Lingard.
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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