United States v. Chad Cummings , 444 F. App'x 693 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAD BERNARD CUMMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00161-BO-2)
Submitted: August 17, 2011 Decided: August 25, 2011
Before KING, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad Bernard Cummings pled guilty to conspiracy to
receive, conceal, and possess stolen mail in violation of 18
U.S.C. § 371 (2006), and was sentenced to a term of twenty-four
months’ imprisonment. Cummings appeals his sentence, contending
that (1) the court erred in determining his criminal history
score under U.S. Sentencing Guidelines Manual § 4A1.1(e) and
§ 4A1.2(d)(1) (2010); and (2) the sentence was unreasonable
because the court misapplied the Guidelines and failed to
explain its reasons for imposing a sentence within the
Guidelines range. For the reasons explained below, we affirm
the district court’s determination of the Guidelines range, but
vacate the sentence and remand for resentencing.
Cummings first argues that § 4A1.1(e) was inapplicable
because his North Carolina “breaking or entering” offenses under
N.C.G.S. § 14-54(a) (LexisNexis 2009) were not crimes of
violence. 1 An issue that turns primarily on a legal
1
Because Cummings did not make this specific argument in
the district court, the government argues that the issue should
be reviewed for plain error. United States v. Olano, 507 U.S.
725, 732-37 (1993). Similarly, Cummings did not argue, and the
district court did not address, the question of whether the
prior convictions were adult convictions, which the record shows
they were. However, Cummings preserved his claim of error in
the calculation of his criminal history score, and we may affirm
the application of § 4A1.1(e) under either the de novo or plain
error standard of review.
2
interpretation of the Guidelines is reviewed de novo. United
States v. Kinter, 235 F.3d 192, 195 (4th Cir. 2000). Cummings
attempts to distinguish United States v. Thompson, 421 F.3d 278(4th Cir. 2005) (Thompson I) (holding that a North Carolina
breaking or entering conviction is a “violent felony” under 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2011), the Armed Career
Criminal Act (ACCA)), 2 on the ground that, in his case, the prior
convictions were crimes of violence, not violent felonies.
However, this circuit’s “precedents evaluating the ACCA apply
with equal force to U.S.S.G. § 4B1.2,” which defines crimes of
violence. United States v. Jarmon, 596 F.3d 228, 231 n.* (4th
Cir.), cert. denied, 131 S. Ct. 145 (2010). In addition,
Cummings’ prior sentences were adult sentences of imprisonment
for more than one year and one month. Therefore, the criminal
history calculation properly began with § 4A1.1(a), as directed
in § 4A1.2(d)(1), which deals with offenses committed prior to
age eighteen. Because the breaking and entering sentences and
the burglary sentences were imposed on the same day, they were
all properly counted under § 4A1.1(e). See USSG
§ 4A1.2(a)(2)(B). In these circumstances, although Cummings
2
We recently reaffirmed our decision in Thompson I. See
United States v. Thompson, 588 F.3d 197 (4th Cir. 2009)
(Thompson II) (holding that Thompson I remains controlling law
after Begay v. United States, 553 U.S. 137 (2008)), cert.
denied, 130 S. Ct. 1916 (2010).
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contends that the court should have applied USSG § 4A1.2(d)(2),
that subsection did not apply. Thus, the court did not err in
overruling Cummings’ objection to the criminal history
calculation.
Cummings argues that his sentence is unreasonable
because the district court gave no explanation for its decision
to impose a twenty-four-month sentence, within the Guidelines
range of 21-27 months, even though he requested a sentence of
time served or probation and the government asked for a sentence
at the low end of the range. Because Cummings argued for a
lower sentence than the one imposed, he preserved this issue,
and review is for abuse of discretion. United States v. Lynn,
592 F.3d 572, 578 (4th Cir. 2010).
A district court commits procedural error in
sentencing when it fails “to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). In
evaluating the district court’s explanation of the sentence
imposed, we have held that, while the district court must
consider the 18 U.S.C. § 3553(a) (2006) factors and explain the
sentence, it need not explicitly refer to § 3553(a) or discuss
every factor on the record. United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). However, the district court “must
make an individualized assessment based on the facts presented”
and apply the “relevant § 3553(a) factors to the specific
4
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (citation, internal quotation
marks, and emphasis omitted). The district court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” us that it
has “considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority.” Id.(citations and internal quotation marks omitted). The reasons
given by the district court need not be “couched in the precise
language of § 3553(a),” as long as the reasons “can be matched
to a factor appropriate for consideration under that statute and
[are] clearly tied to [the defendant’s] particular situation.”
United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007).
In this case, the district court gave no explanation
for its chosen sentence and did not address Cummings’ arguments
for a sentence below the Guidelines range. The court thus
erred, frustrating appellate review, and the error is not
harmless. Consequently, Cummings’ sentence was procedurally
unreasonable.
We therefore affirm the district court’s determination
of Cummings’ criminal history category and Guidelines range.
However, we vacate the sentence and remand for resentencing in
accordance with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented
5
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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