United States v. Glendell Long ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENDELL LONG, a/k/a Okera Uzoma,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:18-cr-00645-RBH-1)
Submitted: September 26, 2019 Decided: October 22, 2019
Before FLOYD and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Sherri A. Lydon, United
States Attorney, Columbia, South Carolina, Justin W. Holloway, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glendell Long appeals the 46-month sentence imposed following his plea of guilty
to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(e) (2012). On appeal, Long argues that the district court erred
by applying a sentencing enhancement, rendering Long’s sentence procedurally
unreasonable. The government argues in response that the district court did not err, but
that even if it did, the error was harmless. After careful consideration of the parties’
arguments, we affirm Long’s sentence.
We review criminal sentences for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence based on an improperly
calculated Guidelines range is procedurally unreasonable. United States v. Davis, 679 F.3d
177, 182 (4th Cir. 2012). “In reviewing whether a sentencing court properly calculated the
Guidelines range, we review the court’s factual findings for clear error and its legal
conclusions de novo.” United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018). We
“will conclude that the ruling of the district court is clearly erroneous only when, after
reviewing all the evidence, we are left with the definite and firm conviction that a mistake
has been committed.” United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (internal
quotation marks omitted).
Section 2K2.1 of the U.S. Sentencing Guidelines Manual provides for a two-level
enhancement to a defendant’s base offense level if the defendant unlawfully possessed
between three and seven firearms. USSG § 2K2.1(b)(1)(A), cmt. n.5 (2018). The
government bears the burden of demonstrating that the sentencing enhancement should be
2
applied, and the district court must find that the enhancement applies by a preponderance
of the evidence. Steffen, 741 F.3d at 414.
Possession of a firearm may be actual or constructive. See United States v. Scott,
424 F.3d 431, 435 (4th Cir. 2005); see also United States v. Lawing, 703 F.3d 229, 240
(4th Cir. 2012) (holding that, to establish § 922(g)(1) offense, proof of actual or exclusive
possession is not necessary; constructive possession is sufficient). “To establish actual
possession, the government must prove that [the defendant] voluntarily and intentionally
had physical possession of the firearm.” United States v. Al Sabahi, 719 F.3d 305, 311 (4th
Cir. 2013) (internal quotation marks omitted). However, “the government can prove
constructive possession by showing that [the defendant] intentionally exercised dominion
and control over the firearm, or had the power and the intention to exercise dominion and
control over the firearm.” Id. (internal quotation marks omitted). “Whether constructive
possession is established is a ‘fact-specific’ inquiry.” Lawing, 703 F.3d at 240.
Having reviewed the evidence presented at Long’s sentencing hearing, we conclude
that the district court did not err in its application of the two-level sentencing enhancement.
Furthermore, even assuming arguendo that the district court committed procedural error,
we conclude that the assumed error is harmless, given the district court’s repeated
statements that it believed 46 months to be the “appropriate” sentence, its consideration of
the relevant 18 U.S.C. § 3553(a) (2012) sentencing factors, and the substantive
reasonableness of the sentence. See United States v. Mills, 917 F.3d 324, 330 (4th Cir.
2019) (finding that, under assumed error harmlessness inquiry, procedural error is harmless
if “(1) the district court would have reached the same result even if it had decided the
3
Guidelines issue the other way, and (2) the sentence would be reasonable even if the
Guidelines issue had been decided in the defendant’s favor.” (brackets and internal
quotation marks omitted)).
Accordingly, we deny Long’s pro se motion for a stay of these proceedings and
affirm the district court’s judgment. 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
4