United States v. Kijon Burgos ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4293
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIJON CHSIREA DAMON BURGOS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:20-cr-00101-MR-WCM-1)
Submitted: July 26, 2022 Decided: August 5, 2022
Before NIEMEYER and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kijon Chsirea Damon Burgos appeals the 180-month sentence imposed after he pled
guilty to possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(e)(1). Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), stating there are no meritorious grounds for appeal but inquiring about the validity
of Burgos’ sentence, which was enhanced under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (ACCA). Burgos has filed a motion requesting leave to file an out-of-time pro se
supplemental brief. We grant his motion. In his pro se brief, Burgos raises additional
challenges to the application of the ACCA sentencing enhancement. The Government has
declined to file a response brief. Finding no error, we affirm.
We review a criminal sentence for procedural and substantive reasonableness,
applying an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
Our review first looks to whether the district court committed any procedural errors, which
might include “failing to calculate (or improperly calculating) the [Sentencing] 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 adequately
explain the chosen sentence.” Id. at 51. “In assessing whether a district court properly
calculated the Guidelines range, including its application of any sentencing enhancements,
[we] review[] the district court’s legal conclusions de novo and its factual findings for clear
error.” United States v. Horton, 693 F.3d 463, 474 (4th Cir. 2012) (cleaned up).
In reviewing a sentence for substantive reasonableness, we examine “the totality of
the circumstances.” Gall, 552 U.S. at 51. “[W]e are obliged to apply a presumption of
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reasonableness to a sentence within or below a properly calculated [G]uidelines range.”
United States v. Vinson, 852 F.3d 333, 357 (4th Cir. 2017) (internal quotation marks
omitted). “That presumption can only be rebutted by showing that the sentence is
unreasonable when measured against the . . . § 3553(a) factors.” Id. at 357-58 (internal
quotation marks omitted).
We have considered the claims raised in the Anders and pro se briefs and conclude
that Burgos’ sentence is procedurally and substantively reasonable. Burgos’ Guidelines
range was correctly calculated and a 15-year statutory mandatory minimum sentence
applied. The district court adopted the Guidelines range set forth in Burgos’ presentence
report, considered counsel’s argument regarding the § 3553(a) factors, afforded Burgos an
opportunity to allocute, and imposed the statutory mandatory minimum sentence
applicable to Burgos’ conviction. Neither Burgos’ youth at the time of his prior convictions
nor the fact that his previous convictions were consolidated for sentencing calls into
question the use of those convictions for imposing a sentence under the Armed Career
Criminal Act. See Wooden v. United States, 142 S. Ct. 1063, 1067, 1071 (2022); United
States v. Wright, 594 F.3d 259, 263-64 (4th Cir. 2010). We discern no basis on which to
question the reasonableness of Burgos’ sentence.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Burgos, in writing, of the right to petition the
Supreme Court of the United States for further review. If Burgos requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
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move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Burgos.
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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