United States v. John Ham, Jr. , 438 F. App'x 183 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN FORREST HAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:10-cr-00046-HFF-1)
Submitted: May 26, 2011 Decided: July 12, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Forrest Ham, Jr., appeals his conviction and 319-
month sentence imposed by the district court following a guilty
plea to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)
(2006) (Count One); carjacking, in violation of 18 U.S.C.
§ 2119(1) (2006) (Count Two); and possession of a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1) (2006). Ham’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), finding
no meritorious grounds for appeal but questioning the
reasonableness of Ham’s sentence. Ham filed a pro se
supplemental brief arguing that the district court erred by
designating him as an armed career criminal and a career
offender and by assessing criminal history points for certain
prior convictions. For the reasons that follow, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court
considers whether the district court properly calculated the
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defendant’s advisory Guidelines range, considered the § 3553(a)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id.
“Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted). An
extensive explanation is not required as long as the appellate
court is satisfied “‘that [the district court] has considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” United States v.
Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)) (alterations in original),
cert. denied, 131 S. Ct. 165 (2010). If the court finds “no
significant procedural error,” it next assesses the substantive
reasonableness of the sentence, taking “‘into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Morace,
594 F.3d 340, 345-46 (4th Cir.) (quoting Gall, 552 U.S. at 51),
cert. denied, 131 S. Ct. 307 (2010).
Because Ham did not request a sentence different than
the one ultimately imposed, we review his sentence for plain
error. United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.
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2010). To establish plain error, Ham “must show: (1) an error
was made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Even if Ham satisfies these
requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not exercise . . .
unless the error affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007).
With these standards in mind, we have reviewed the
record and conclude that Ham’s sentence is both procedurally and
substantively reasonable. In accordance with Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. We therefore affirm Ham’s
convictions and sentence.
This court requires that counsel inform Ham, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Ham 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 Ham. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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