United States v. Brayan Mengou

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 15, 2023
• Docket: 21-4539
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4539

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRAYAN MENGOU,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:20-cr-00008-GMG-RWT-2)

Submitted: January 30, 2023 Decided: February 15, 2023

Before NIEMEYER and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Lara Kay Omps-Botteicher, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee.

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PER CURIAM:

Brayan Mengou pleaded guilty, pursuant to a written plea agreement, to aiding and

abetting the illegal transportation or receipt of firearms, in violation of 18 U.S.C.

§§ 922(a)(3), 924(a)(1)(D). The district court sentenced him to 60 months’ imprisonment.

On appeal, Mengou’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), concluding that there are no meritorious grounds for appeal but questioning

whether Mengou’s sentence is reasonable. For the following reasons, we affirm.

We review Mengou’s sentence “for reasonableness ‘under a deferential abuse-of-

discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). Our reasonableness review has procedural

and substantive components. We first must ensure that the district court did not commit

procedural error, such as “failing to calculate (or improperly calculating) the [Sentencing]

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence.” United States v. Lymas, 781 F.3d 106, 111-12

(4th Cir. 2015) (quoting Gall, 552 U.S. at 51). “When rendering a sentence, the district

court must make an individualized assessment based on the facts presented”; state in open

court the reasons supporting its chosen sentence; and “address the parties’ nonfrivolous

arguments in favor of a particular sentence” and, if it rejects them, explain why in a manner

allowing for “meaningful appellate review.” United States v. Provance, 944 F.3d 213, 218

(4th Cir. 2019) (internal quotation marks omitted).

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If the sentence is procedurally sound, we review the substantive reasonableness of

the sentence. Gall, 552 U.S. at 51. Substantive reasonableness review “takes into account

the totality of the circumstances to determine whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied the standards set forth in

§ 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation

marks omitted). Any sentence within a properly calculated Guidelines range is

presumptively substantively reasonable, and Mengou bears the burden of demonstrating

that the sentence is unreasonable when measured against the § 3553(a) factors. United

States v. White, 810 F.3d 212, 230 (4th Cir. 2016).

Anders counsel questions whether the district court erred in enhancing Mengou’s

base offense level by four levels pursuant to U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(6)(B) (2018). The Guidelines instruct that the enhancement is warranted if the

defendant “used or possessed any firearm or ammunition in connection with another felony

offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or

reason to believe that it would be used or possessed in connection with another felony

offense.” USSG § 2K2.1(b)(6)(B). “[A] firearm is possessed ‘in connection with’ another

felony offense for purposes of the four-level enhancement when that firearm ‘facilitated[]

or had the potential of facilitating’ another felony.” United States v. Bolden, 964 F.3d 283,

287 (4th Cir. 2020) (quoting USSG § 2K2.1 cmt. n.14(A)). “[T]his standard is not

especially burdensome: We will find it satisfied when a firearm has some purpose or effect

with respect to the other offense, including cases where a firearm is present for protection

or to embolden the actor.” Id. (internal quotation marks omitted). “When the other felony

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offense is drug trafficking, then . . . a firearm found in close physical proximity to drugs

presumptively has the potential of facilitating the trafficking offense.” Id. at 287-88

(cleaned up); see USSG § 2K2.1 cmt n.14(B). We conclude that the district did not clearly

err by applying the four-level enhancement because, at the very least, Mengou possessed a

firearm with “reason to believe” that it would be used or possessed in connection with a

drug trafficking offense. See USSG § 2K2.1(b)(6)(B).

Anders counsel further questions whether the district court adequately addressed

Mengou’s nonfrivolous arguments in favor of a reduced sentence, including the mitigating

effects of his youth and his traumatic childhood. Upon review, we conclude that the district

court sufficiently explained its reasons for imposing a 60-month sentence and implicitly

acknowledged Mengou’s mitigation arguments in that explanation. See United States v.

Blue, 877 F.3d 513, 521 (4th Cir. 2017) (noting that reviewing courts can use surrounding

context to infer sufficient consideration of mitigation arguments). The court considered

Mengou’s extensive involvement with gangs and drugs, his long criminal history that

began at the age of 13, his prior felony conviction for a gang-related assault, and his

minimal employment history. However, the court also paid particular attention to a pre-

sentencing forensic psychiatric evaluation of Mengou that recounted in detail his personal

history and traumatic childhood, considered the arguments regarding Mengou’s young age

in finding that he needed the structure and training that prison would provide, and imposed

a supervised release condition designed to assist Mengou escape his gang-related past.

Therefore, we conclude that Mengou’s sentence was procedurally reasonable. Finally, we

conclude that Mengou’s within-Guidelines sentence was also substantively reasonable.

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In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Mengou, in writing, of the right to petition the

Supreme Court of the United States for further review. If Mengou 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 Mengou.

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