United States v. Brooks , 239 F. App'x 793 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:05-
cr-00452-PJM)
Submitted: June 11, 2007 Decided: July 9, 2007
Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. McKenna, BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Sandra Wilkinson, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Brooks pled guilty to two counts of being a felon
in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g) (2000). Under the advisory sentencing guidelines, his
range of imprisonment was thirty-seven to forty-six months. The
district court sentenced Brooks to concurrent sentences of eighty-
four months’ imprisonment. On appeal, Brooks claims the district
court plainly erred by not giving him notice under Rule 32(h) of
the Federal Rules of Criminal Procedure that it was considering a
sentence above the advisory guidelines. Brooks further claims the
sentence is unreasonable. Finding no error, we affirm.
Because Brooks failed to object to the lack of notice,
review is for plain error. See United States v. Spring, 305 F.3d
276, 281 (4th Cir. 2002). Under the plain error standard, Brooks
must show: (1) there was error; (2) the error was plain; and
(3) the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732-34 (1993). When these conditions are
satisfied, we may exercise our discretion to notice the error only
if the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted). Brooks has the burden of showing plain
error. United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir.
2001).
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We have held that, pursuant to Rule 32(h), advance notice
is required before a district court departs or varies from the
advisory guideline range in sentencing a defendant after the
original judgment of conviction. United States v. Davenport, 445
F.3d 366, 371 (4th Cir. 2006). The failure to give notice that the
court intends to depart is an error that is plain. United
States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007).
We find Brooks fails to show the error affects his
substantial rights. He had notice of the factors the district
court used to impose his sentence. He was given an opportunity to
provide evidence in mitigation and to allocute. Brooks fails to
show that there was any evidence he was prevented from showing the
court due to lack of reasonable notice. Accordingly, Brooks fails
to establish plain error.
Brooks’ sentence was thirty-eight months above the top
end of the guidelines range of imprisonment. When imposing a
sentence after United States v. Booker, 543 U.S. 220 (2005), the
district court is authorized to make factual findings in order to
appropriately determine the defendant’s advisory range under the
guidelines, as the district court did here. Davenport, 445 F.3d at
370. A post-Booker sentence may be unreasonable for procedural and
substantive reasons. “A sentence may be procedurally unreasonable,
for example, if the district court provides an inadequate statement
of reasons . . . . A sentence may be substantively unreasonable if
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the court relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission.” United
States v. Moreland, 437 F.3d 424, 434 (4th Cir.) (citations
omitted), cert. denied, 126 S. Ct. 2054 (2006). “[A] district
court’s explanation should provide some indication (1) that the
court considered the § 3553(a) factors with respect to the
particular defendant; and (2) that it has also considered the
potentially meritorious arguments raised by both parties about
sentencing.” United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006) (internal citation omitted). “[I]n determining
whether there has been an adequate explanation, [the Court does]
not evaluate a court’s sentencing statements in a vacuum.” Rather,
“[t]he context surrounding a district court’s explanation may imbue
it with enough content for [the Court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id. at 381.
We find the district court properly considered the
purposes of imposing a sentence and the § 3553(a) factors. See
United States v. Shortt, 485 F.3d 243 (4th Cir. 2007). Brooks had
a violent criminal history that included acts of torture. He also
lied to the court regarding possessing firearms. He has shown a
lack of respect for the law and for the constraints of supervised
release. We find no error by the district court in imposing a
sentence above the advisory guidelines range of imprisonment.
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Accordingly, we affirm the convictions and sentence. 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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