United States v. Willie Slocum, Jr. , 646 F. App'x 294 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE SLOCUM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:13-cr-00274-1)
Submitted: January 29, 2016 Decided: April 22, 2016
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John A. Carr, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Steven I. Loew,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Slocum, Jr., appeals the 360-month sentence the
district court imposed after a jury convicted Slocum of all
charges in a 5-count second superseding indictment. 1 Counsel for
Slocum has filed a merits brief, asserting that the district
court committed reversible procedural error in determining
Slocum’s criminal history category and that the selected
sentence is substantively unreasonable. We reject these
arguments and affirm the criminal judgment.
We review any federal sentence for reasonableness, applying
the abuse of discretion standard. United States v. Lymas, 781
F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United States, 552
U.S. 38, 41 (2007)). First, this court considers the procedural
reasonableness of the sentence, which requires us to evaluate
whether the district court committed a significant procedural
error, such as improperly calculating the Sentencing Guidelines
range or failing to appropriately consider the relevant
sentencing factors. Gall, 552 U.S. at 51. If the sentence is
1 Specifically, Slocum was convicted of conspiracy to
distribute more than one kilogram of heroin, in violation of 21
U.S.C. § 846 (2012); conspiracy to distribute an unspecified
quantity of oxycodone, also in violation of 21 U.S.C. § 846; two
counts of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012); and engaging in
witness tampering, in violation of 18 U.S.C. § 1512(b)(1)
(2012).
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procedurally reasonable, we then assess its substantive
reasonableness, taking into account the totality of the
circumstances. Id.
Slocum challenges the procedural reasonableness of his
sentence in terms of the district court’s decision to assign him
to criminal history category VI. Because Slocum raised this
issue at sentencing, our review for an abuse of discretion is
preserved, see United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010), and the Government bears the burden of demonstrating
the harmlessness of any error in this regard, see id. at 585.
See also United States v. Savillon-Matute, 636 F.3d 119, 123
(4th Cir. 2011) (observing that procedural sentencing errors
“are routinely subject to harmlessness review” (quoting Puckett
v. United States, 556 U.S. 129, 141 (2009)). Under harmless
error review, the Government may avoid reversal by showing that
the error “did not have a ‘substantial and injurious effect or
influence’ on the result.” Lynn, 592 F.3d at 585 (quoting
United States v. Curbelo, 343 F.3d 273, 278 (4th Cir. 2003)).
We accept Slocum’s contention that the district court erred
in this aspect of its Guidelines computation, 2 but hold that the
Government has demonstrated that the error is harmless. As the
2The Government, consistent with its position at
sentencing, suggests in its response brief that the error may be
assumed. Appellee’s Br. at 6.
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Government notes in its response brief, regardless of whether
Slocum was placed in criminal history category I or VI, his
Guidelines range was 360 months to life in prison because he was
assigned a total offense level of 42. See U.S. Sentencing
Guidelines Manual ch. 5, pt. A (sentencing table) (2014).
Because the error cannot be considered to have had an injurious
effect on Slocum’s sentence, we conclude that the assignment of
error fails on assumed error review. See United States v.
Hargrove, 701 F.3d 156, 163 (4th Cir. 2012) (explaining that
“the assumed error harmlessness inquiry is an appellate tool
that we utilize in appropriate circumstances to avoid the ‘empty
formality’ of an unnecessary remand where it is clear that an
asserted guideline miscalculation did not affect the ultimate
sentence”).
Slocum’s second and final appellate contention is that his
sentence is substantively unreasonable in light of the specific
facts and circumstances of his case. “A review for substantive
reasonableness takes into account the ‘totality of the
circumstances.’” United States v. Howard, 773 F.3d 519, 528
(4th Cir. 2014) (quoting Gall, 552 U.S. at 51). We presume that
a sentence within or below the Guidelines range is presumptively
substantively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). A
defendant rebuts this presumption by demonstrating that the
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selected sentence is unreasonable considered against the 18
U.S.C. § 3553(a) (2012) factors. Id.
To undermine the presumptive substantive reasonableness of
his sentence, counsel for Slocum suggests that Slocum’s is an
“atypical and truly unusual case,” Appellant’s Br. at 16, citing
Slocum’s relatively limited criminal history; Slocum’s current
family circumstances, relative youth, and lack of a father
figure in his childhood; and the potential good that Slocum
could offer society.
But these facts are not of a sufficient quality to rebut
the presumption of reasonableness afforded Slocum’s sentence,
which was at the low end of his advisory Guidelines range. The
district court offered ample reasons, all of which were rooted
in the § 3553(a) sentencing factors, for rejecting Slocum’s
request for a downward variant sentence and imposing the
selected sentence. We are charged with giving “due deference to
the district court’s decision that the § 3553(a) factors, on a
whole, justify” the sentence imposed. Gall, 552 U.S. at 51. On
this record, we discern no abuse of discretion in the district
court’s decision to impose a within-Guidelines sentence on this
defendant.
Accordingly, we affirm the criminal judgment. We deny
Slocum’s motion to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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