United States v. Ervin Montez Alston, Jr. ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERVIN MONTEZ ALSTON, JR., a/k/a Wes, a/k/a Wesley,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:16-cr-00074-D-3)
Submitted: December 30, 2019 Decided: January 9, 2020
Before FLOYD, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian Michael Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ervin Montez Alston, Jr., appeals his conviction and sentence after pleading guilty
to Hobbs Act robbery in violation of 18 U.S.C. §§ 2, 1951(a) (2012) and discharging a
firearm during and in relation to the Hobbs Act robbery in violation of 18 U.S.C. §§ 2,
924(c)(1)(A)(iii) (2012). The district court sentenced him below his Guidelines range to
72 months in prison for the Hobbs Act robbery and a consecutive 120-month prison term
for discharging the firearm, totaling 192 months in prison. On appeal, Alston’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious grounds for appeal but raising for review whether the district court plainly
erred under Johnson v. United States, 135 S. Ct. 2551 (2015), and its progeny by sentencing
Alston to 120 months in prison for aiding and abetting the discharge of a firearm during
and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii). Alston was
notified of his right to file a pro se supplemental brief but has not done so. We affirm.
“As a general matter, in reviewing any sentence whether inside, just outside, or
significantly outside the Guidelines range, we review for an abuse of discretion.” United
States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks omitted). We
review the question whether an offense qualifies as a crime of violence de novo. United
States v. Mathis, 932 F.3d 242, 263 (4th Cir. 2019). However, procedural sentencing errors
and other specific claims of error raised for the first time on appeal are reviewed for plain
error. United States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010); United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010). “To prevail on plain error review, an appellant must
show (1) that the district court erred, (2) that the error was plain, . . . (3) that the error
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affected his substantial rights,” and (4) that “the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v. Cohen, 888 F.3d
667, 685 (4th Cir. 2018) (internal quotation marks omitted). Because Alston asserts error
in his sentence for the first time on appeal, we review his contention for plain error.
We have reviewed the record and conclude that the district court did not err in
sentencing Alston to 120 months in prison for discharging a firearm during and in relation
to a crime of violence. The substantive offense of “Hobbs Act robbery constitutes a crime
of violence under the force clause of Section 924(c).” Mathis, 932 F.3d at 266. Moreover,
the fact that Alston aided and abetted the discharge of a firearm in this case does not alter
the effect of the rule in Mathis. “[I]n the federal system, culpability for an offense as an
aider and abettor is treated no differently from treatment as a principal.” United States v.
Kimble, 855 F.3d 604, 613 (4th Cir. 2017); cf. United States v. Day, 700 F.3d 713, 720 (4th
Cir. 2012) (“[A]iding and abetting liability does not set forth an essential element of the
offense with which the defendant is charged or itself create a separate offense” but “simply
describes the way in which a defendant’s conduct resulted in the violation of a particular
law.” (internal quotation marks omitted)). Alston agreed that he aided and abetted the
discharge of a firearm during and in relation to the Hobbs Act robbery he committed on
March 16, 2015; the district court was required to impose a mandatory minimum sentence
of 120 months’ imprisonment on that count.
In accordance with Anders, we have reviewed the record and have found no
meritorious issues for appeal. We therefore affirm the district court’s judgment. This court
requires that counsel inform his or her client, in writing, of his or her right to petition the
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Supreme Court of the United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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