United States v. Gerard Fenner ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4599
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERARD RODERKUS FENNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:20-cr-00085-D-1)
Submitted: July 26, 2022 Decided: July 28, 2022
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Amos G. Tyndall, Thomas K. Maher, AMOS TYNDALL PLLC, Carrboro,
North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A.
Bragdon, Assistant United States Attorney, Joshua L. Rogers, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gerard Roderkus Fenner appeals the 168-month sentence imposed following his
guilty plea to possession with intent to distribute a quantity of a mixture and substance
containing a detectable amount of heroin and fentanyl, a quantity of marijuana, and 50
grams or more of a mixture and substance containing methamphetamine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B); possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Fenner
challenges the district court’s application of a two-level Sentencing Guidelines
enhancement, as well as the substantive reasonableness of his sentence. Assuming without
deciding that the court made the Guidelines error Fenner alleges, we conclude that such
error is harmless. Finding no other error, we affirm.
A Guidelines error is harmless—and, thus, does not warrant reversal—if “(1) the
district court would have reached the same result even if it had decided the 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.” United States v. Mills, 917 F.3d 324, 330 (4th Cir.
2019) (brackets and internal quotation marks omitted); see United States v. McDonald, 850
F.3d 640, 643 (4th Cir. 2017) (discussing assumed error harmlessness inquiry). Here, the
district court explicitly stated that a 168-month upward variance sentence was warranted
under the pertinent 18 U.S.C. § 3553(a) factors. Because the “court made it abundantly
clear that it would have imposed the same sentence . . . regardless of the advice of the
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Guidelines,” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014), we
conclude that the first prong of the assumed error harmlessness inquiry is satisfied.
Turning to the second prong, we consider whether the sentence is substantively
reasonable, taking into account the Guidelines range that would have applied absent the
assumed error. Mills, 917 F.3d at 331. To be substantively reasonable, a sentence must be
“sufficient, but not greater than necessary,” to satisfy the goals of sentencing. 18 U.S.C.
§ 3553(a). In reviewing a sentence outside the Guidelines range, we “may consider the
extent of the deviation, but 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 v. United States,
552 U.S. 38, 51 (2007).
Fenner’s 168-month sentence is 12 months longer than the top of the Guidelines
range that would have applied had his Guidelines objection been sustained. As the district
court explained, this minor upward variance was warranted in light of the seriousness of
Fenner’s offenses, which involved not only the dangerous combination of carrying guns
and selling drugs, but also the deadly practice of dealing fentanyl-laced heroin. The court
also emphasized Fenner’s substantial criminal history and the fact that Fenner committed
the instant crimes while on supervised release. Finally, while acknowledging that the low
purity of Fenner’s methamphetamine somewhat mitigated the seriousness of his conduct,
the court reasonably concluded that the other aggravating factors militated against
imposing the significantly lower sentence that Fenner requested. And although, on appeal,
Fenner contends that the low-purity factor should have received greater weight, a
defendant’s mere disagreement with the value or weight that a court attributes to a
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sentencing factor does not establish an abuse of the court’s discretion. See United States
v. Susi, 674 F.3d 278, 290 (4th Cir. 2012). Thus, we conclude that Fenner’s upward
variance sentence is substantively reasonable and, consequently, that the purported
miscalculation of Fenner’s Guidelines range is harmless.
Accordingly, we 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
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