United States v. Jeter , 407 F. App'x 678 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4250
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AVERY DEMOND JETER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior
District Judge. (7:07-cr-00695-GRA-1)
Submitted: December 20, 2010 Decided: January 13, 2011
Before KING, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Maxwell Cauthen, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avery Demond Jeter pled guilty to being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1) (2006) (count
one), and possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1) (2006) (count three).
The district court initially imposed a sentence of 120 months on
count one and 262 months on count three, to run concurrently to
count one. By joint motion of the parties, we remanded for
resentencing to correct the sentence because a sentence pursuant
to § 924(c) is required by statute to run consecutive to any
other sentence. At resentencing, the district court again
imposed a total sentence of 262 months’ imprisonment, but
imposed 120 months on count one and a consecutive 142 months on
count three. On appeal, Jeter challenges his 262-month
sentence, arguing the district court did not adequately explain
the reason for its chosen sentence. We affirm.
This court reviews a sentence 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 us 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
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[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, [this court] review[s] for abuse of discretion” and will
reverse if such an abuse of discretion is found unless the court
can conclude “that the error was harmless.” United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, “the
district court must state in open court the particular reasons
supporting its chosen sentence [and] set forth enough to satisfy
the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own
legal decisionmaking authority.” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (internal citation and quotation
marks omitted). If “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from § 3553 “for a sentence
different than the one ultimately imposed,” the party
sufficiently “preserves its claim.” Lynn, 592 F.3d at 578; see
also United States v. Thompson, 595 F.3d 544, 546 (4th Cir.
2010) (“[A] defendant need only ask for a sentence outside the
range calculated by the court prior to sentencing in order to
preserve his claim for appellate review.”).
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Jeter asserts that the district court committed
procedural error by failing to adequately explain the sentence
imposed. Jeter’s arguments in the district court for a sentence
below the recommended Guidelines range preserved his claim of
procedural sentencing error on appeal. Id. These arguments
“sufficiently alert[ed] the district court of its responsibility
to render an individualized explanation addressing those
arguments.” Lynn, 592 F.3d at 578. Therefore, we review any
procedural sentencing error for abuse of discretion and reverse
unless the error was harmless. Id. at 579. This standard
requires that the Government bear the burden of establishing
that the error did not affect Jeter’s substantial rights.
United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006).
Specifically, the Government “may avoid reversal only if it
demonstrates that the error did not have a substantial and
injurious effect or influence on the result and we can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed.” United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) (alterations and internal quotation marks
omitted).
We have reviewed the record and agree with the
Government that any procedural sentencing error in this case was
harmless, as we have no doubt that the district court assessed
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Jeter’s arguments in applying the § 3553(a) factors. See id. at
839. At the first two sentencing hearings, the district court
afforded Jeter an opportunity to allocute and defense counsel an
opportunity to argue for a sentence below the Guidelines range;
namely, overrepresentation of criminal history, Jeter’s troubled
childhood, and new parental responsibilities. The court
addressed in detail Jeter’s extensive criminal history, ensured
that all of his objections had been addressed, and stated that
it had considered the § 3553(a) factors before imposing
sentence. At resentencing, the court explicitly stated that it
had considered Jeter’s request for a downward variance based on
his work in prison. Additionally, in imposing the same total
sentence as previously imposed, the court explicitly referenced
its consideration of several of the § 3553(a) factors.
We are satisfied that the district court considered
the parties’ arguments and had a reasoned basis for the sentence
imposed, Boulware, 604 F.3d at 837, and that this sentence would
not be impacted by a more thorough explanation. See also Rita
v. United States, 551 U.S. 338, 359 (2007) (“Where . . . the
record makes clear that the sentencing judge considered the
evidence and arguments, we do not believe the law requires the
judge to write more extensively.”). Accordingly, we affirm
Jeter’s sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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