Opinion
No. 16-4333
04-02-2018
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMARIO CURTIS HILL, Defendant - Appellant.
Anthony Martinez, Federal Public Defender, Ann L. Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00100-FDW-1) Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Anthony Martinez, Federal Public Defender, Ann L. Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Jamario Curtis Hill appeals his conviction and 58-month sentence imposed following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). On appeal, Hill's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning whether the district court erred in applying an enhanced base offense level. Hill was notified of his right to file a pro se supplemental brief but has not done so. The Government has declined to file a response brief. For the reasons that follow, we affirm.
We review a sentence for reasonableness, applying "a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007). We first determine whether the district court committed significant procedural error, such as incorrect calculation of the Sentencing Guidelines range, inadequate consideration of the 18 U.S.C. § 3553(a) (2012) factors, or insufficient explanation of the sentence imposed. United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
In evaluating the district court's Guidelines calculations, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. White, 771 F.3d 225, 235 (4th Cir. 2014). We review unpreserved Guidelines challenges for plain error. United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015); see Molina-Martinez v. United States, 136 S. Ct. 1338, 1343, 1345 (2016) (describing standard).
If we find no procedural error, we examine the substantive reasonableness of the sentence under "the totality of the circumstances." Gall, 552 U.S. at 51. The sentence imposed must be "sufficient, but not greater than necessary," to satisfy the goals of sentencing. See 18 U.S.C. § 3553(a). We presume on appeal that a within-Guidelines sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). Hill bears the burden to rebut this presumption "by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors." Id.
In his Anders brief, counsel advises that Hill has questioned the impact of Johnson v. United States, 135 S. Ct. 2551 (2015), on his enhanced base offense level. Hill received an enhanced base offense level based on the sentencing court's finding that he committed his underlying federal offense "subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2015); see USSG § 4B1.2(a) (defining "crime of violence"). As a predicate crime of violence for the enhancement, the court relied upon Hill's prior North Carolina conviction for robbery with a dangerous weapon.
In light of recent authority, we conclude that there was no procedural error in calculating the sentence. In Johnson, the Supreme Court determined that the residual clause of the Armed Career Criminal Act (ACCA), reaching offenses that "involve[] conduct that presents a serious potential risk of physical injury to another," see 18 U.S.C. § 924(e)(2)(B)(ii) (2012), is unconstitutionally vague. 135 S. Ct. at 2556-63. In Beckles v. United States, 137 S. Ct. 886 (2017), however, the Supreme Court declined to extend the reasoning in Johnson to the Guidelines, holding that the Guidelines are not subject to a due process vagueness challenge and that the residual clause under USSG § 4B1.2(a) is not void for vagueness. 137 S. Ct. at 895. In light of Beckles, Hill cannot raise a vagueness challenge to his predicate crimes of violence under Johnson. Further, any potential challenge Hill could raise to the classification of his predicate conviction as a crime of violence is foreclosed by recent authority from this court. See United States v. Burns-Johnson, 864 F.3d 313, 315 (4th Cir.) (holding that North Carolina robbery with dangerous weapon categorically qualifies as violent felony under ACCA's force clause), cert. denied, 138 S. Ct. 461 (2017) ; see also United States v. Montes-Flores, 736 F.3d 357, 363 (4th Cir. 2013) (recognizing that decisions evaluating whether offense qualifies as ACCA violent felony are used interchangeably with decisions evaluating whether offense qualifies as Guidelines crime of violence). Thus, we find no error, plain or otherwise, in Hill's enhanced base offense level.
Our review of the record reveals that Hill's sentence is reasonable. The district court properly calculated Hill's Guidelines range and sentenced him below the advisory Guidelines range and the applicable statutory maximum. The court considered the parties' arguments in sentencing Hill and articulated a reasoned basis for the sentence it imposed, grounded in the 18 U.S.C. § 3553(a) factors. Further, Hill fails to rebut the presumption of reasonableness accorded his below-Guidelines sentence. See Louthian, 756 F.3d at 306.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Hill's conviction and sentence. This court requires that counsel inform Hill, in writing, of the right to petition the Supreme Court of the United States for further review. If Hill 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 Hill.
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