United States v. Jefferson , 379 F. App'x 292 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4757
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH D. JEFFERSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00045-JRS-1)
Submitted: April 26, 2010 Decided: May 24, 2010
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Nia A. Vidal,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth D. Jefferson appeals his jury conviction and
108-month sentence for possession of a firearm and ammunition by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
After reviewing the record and considering Jefferson’s
assignments of error, we affirm Jefferson’s conviction but
vacate his sentence and remand for resentencing.
Jefferson first asserts that the district court erred
when it excluded from evidence a Government witness’s prior
felony convictions, in accordance with Fed. R. Evid. 609(b). We
review the district court’s determination regarding the
admissibility of evidence for an abuse of discretion. United
States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir. 2005). “An
abuse of discretion occurs only when a trial court has acted
‘arbitrarily’ or ‘irrationally’ in admitting evidence, when a
court has failed to consider ‘judicially recognized factors
constraining its exercise’ of discretion, or when it has relied
on ‘erroneous factual or legal premises.’” Id. at 419 (internal
citations omitted). We conclude that the district court did not
abuse its discretion when it excluded evidence of the witness’s
prior convictions.
Jefferson next asserts that the district court erred
when it denied his request for an ex parte witness subpoena to
recall the Government witness after she was excused without
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objection. While an unjustified denial of a Fed. R. Crim. P.
17(b) application “may violate a defendant’s right of compulsory
process, such motions are committed to the trial court's sound
discretion.” United States v. Butler, 885 F.2d 195, 200
(4th Cir. 1989). “In this circuit, a trial judge's discretion
to deny a [R]ule 17(b) motion made after the beginning of trial
is comparable to his discretion in ruling on a motion for a
continuance to secure a witness during trial.” Id. (internal
citation and quotation marks omitted). We find no reversible
error in the district court’s refusal to grant Jefferson’s
application.
Jefferson last asserts that the district court erred
when it imposed his 108-month sentence without an adequate
explanation. After United States v. Booker, 543 U.S. 220(2005), this court reviews a sentence on appeal for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). The first step
in this review requires the court to ensure that the district
court committed no significant procedural error. United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
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adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51. If, and only if, this court finds the sentence
procedurally reasonable can the court consider the substantive
reasonableness of the sentence imposed. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
We find that the district court procedurally erred
when it sentenced Jefferson to 108 months in prison without
stating in open court the particular reasons supporting the
sentence. Not only did the district court fail to respond to
the arguments Jefferson raised at the sentencing hearing, the
district court also failed to indicate that it even considered
Jefferson’s arguments in rendering the sentence or that it
considered the § 3553(a) factors. The Government’s assertions
to the contrary, we simply cannot presume that, under the
circumstances of this case, Jefferson would not have received a
lesser sentence had the district court explicitly considered his
non-frivolous arguments for a sentence at the bottom of his
Guidelines range. See United States v. Thompson, 595 F.3d 544,
548 (4th Cir. 2010).
Based on the foregoing, we affirm Jefferson’s
conviction but vacate his sentence and remand to the district
court for resentencing in accordance with this opinion. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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