United States v. George Hargrove ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE MALCOLM HARGROVE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:19-cr-00114-RJC-DSC-1)
Submitted: April 14, 2022 Decided: April 18, 2022
Before DIAZ and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant.
William T. Stetzer, Acting United States Attorney, Anthony J. Enright, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Malcolm Hargrove pled guilty to distribution of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(B), receiving child pornography, in violation of 18
U.S.C. § 2252A(a)(2)(B), and possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court imposed a sentence of 210 months’ imprisonment on
each count, to be served concurrently. On appeal, Hargrove argues that his sentence is
procedurally unreasonable because the district court erred in applying a five-level
enhancement under U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(B) (2018), and in
failing to comply with Fed. R. Crim. P. 32 at sentencing. * We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard.” United States v. Nance, 957 F.3d 204, 212 (4th Cir.), cert.
denied, 141 S. Ct. 687 (2020). In evaluating procedural reasonableness, we must determine
“whether the district court committed any procedural error, such as improperly calculating
the [Sentencing] Guidelines range, failing to consider the § 3553(a) factors, or failing to
adequately explain the chosen sentence.” Id. (citing Gall v. United States, 552 U.S. 38, 51
(2007)).
Hargrove argues that the district court erred in applying a five-level enhancement
for distributing child pornography in exchange for valuable consideration, but not for
*
Although Hargrove summarily asserts on appeal that his sentence is also
substantively unreasonable, he fails to develop that argument. Therefore, he has waived
review of that claim. See Hensley v. Price, 876 F.3d 573, 580 n.5 (4th Cir. 2017) (“[A]
party must do more than take a passing shot at an issue to properly preserve it for appellate
review.” (cleaned up)).
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pecuniary gain, pursuant to USSG § 2G2.2(b)(3)(B). Because Hargrove did not challenge
the enhancement below, we review for plain error. United States v. Barringer, 25 F.4th
239, 253 (4th Cir. 2022). To establish plain error, Hargrove must demonstrate (1) there
was an error, (2) the error was plain, and (3) the error affects Hargrove’s substantial rights.
Id. Even then, we recognize plain error “only to prevent a miscarriage of justice.” Id.(internal quotation marks omitted). We conclude that the district court did not err in
applying the enhancement.
Last, Hargrove asserts that the district court failed to comply with Fed. R. Crim. P.
32(e)(2), which requires the probation officer to provide the presentence report (PSR) to
the defendant “at least 35 days before sentencing unless the defendant waives this
minimum period.” Hargrove also contends that the district court failed to ensure that he
had an opportunity to read the final version of the PSR, and to allow him to object to the
final PSR, as required by Fed. R. Crim. P. 32(i)(1)(A), (C). Because Hargrove similarly
failed to raise these claims in the district court, we review for plain error. See Barringer,
25 F.4th at 253. Having reviewed the record, we discern no reversible error.
Accordingly, we affirm the criminal judgment. 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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