USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID HANDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:18-cr-00336-GLR-1)
Submitted: February 10, 2022 Decided: March 24, 2022
Before WYNN, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Joanna Silver, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Robert K. Hur, United States Attorney, Brandon K. Moore, Assistant United States Attorney, Christine O. Goo, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 2 of 7
PER CURIAM:
David Handy pled guilty in February 2019 to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court enhanced
Handy’s offense level four levels under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) for use or possession of a firearm in connection with the felony offense
of reckless endangerment violating Maryland state law based on his involvement in a
shooting incident, calculated a Guidelines range of 27 to 33 months’ imprisonment, and
sentenced Handy to 24 months’ imprisonment.
On appeal, Handy challenges this prison term, arguing that the district erred by not
considering – with respect to his assertion of self-defense to the offense of reckless
endangerment – if his escape route from the shooting incident was safe and, to the extent
the court considered the escape route to be safe, that the conclusion that the route was safe
was clearly erroneous. Handy also maintains that the district court erred in its explanation
of the sentence by failing to consider his argument regarding the deterrent effect of being
shot in the chest and almost dying made in support of a sentence at the low end of the
15-to-21-month Guidelines range that he asserted would apply if the enhancement under
USSG § 2K2.1(b)(6)(B) did not. We affirm. 1
1 During the pendency of this appeal, Handy was released from prison. We nevertheless conclude that, because Handy is still serving a three-year term of supervised release, this appeal is not moot. See United States v. Ketter, 908 F.3d 61, 65– 66 (4th Cir. 2018).
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“As a general matter, in reviewing any sentence ‘whether inside, just outside, or
significantly outside the Guidelines range,’ we apply a ‘deferential abuse-of-discretion
standard.’” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)). Under this standard, we review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v. Bolton,
858 F.3d 905, 911 (4th Cir. 2017). “We first review for procedural errors; if and only if,
we find no such procedural errors may we assess the substantive reasonableness of a
sentence.” Id. (cleaned up). In evaluating the procedural reasonableness of a sentence, we
assess whether the district court improperly calculated the Guidelines range, failed to
consider the 18 U.S.C. § 3553(a) factors, or failed to adequately explain the chosen
sentence. United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020).
“It is well established[, however,] that we will not vacate a sentence if we determine
that the district court’s improper calculation of the Guidelines advisory sentencing range
was harmless.” United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019). As the
Government suggests, we need not resolve Handy’s challenges to the district court’s
Guidelines ruling but may instead “proceed directly to an assumed error harmlessness
inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal
quotation marks omitted). A sentencing error is harmless if: “(1) the district court would
have reached the same result even if it had decided the Guidelines issue the other way, and
(2) the sentence would be reasonable even if the Guidelines issue had been decided in the
defendant’s favor.” Mills, 917 F.3d at 330 (cleaned up). Here, the first prong of the inquiry
is easily met. The district court stated after imposing the 24-month term that it would have
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found that sentence reasonable had the four-level enhancement under § 2K2.1(b)(6)(B) not
necessarily applied and noted in its statement of reasons that the sentence imposed would
have been the same even if the four-level enhancement was inapplicable. See id. (noting
that record in a case may show “that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range” and concluding that court’s statement that
particular prison term was one it would have imposed even had another Guidelines range
been applicable met the first prong of the inquiry (internal quotation marks omitted)). “We
therefore proceed to the second prong of the inquiry, whether the district court’s sentence
[is] substantively reasonable.” Id. at 331 (internal quotation marks omitted).
In reviewing the substantive reasonableness of a variant sentence, we “consider
whether the sentencing court acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence from the sentencing range.”
United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). Although a district court’s “explanation for the sentence must support the degree
of the variance, it need not find extraordinary circumstances to justify a deviation from the
Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (cleaned up).
Because this court’s review is ultimately for an abuse of discretion, we accord “due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal
quotation marks omitted).
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USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID HANDY,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:18-cr-00336-GLR-1)
Submitted: February 10, 2022 Decided: March 24, 2022
Before WYNN, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Joanna Silver, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Robert K. Hur, United States Attorney, Brandon K. Moore, Assistant United States Attorney, Christine O. Goo, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 2 of 7
PER CURIAM:
David Handy pled guilty in February 2019 to possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court enhanced
Handy’s offense level four levels under U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(6)(B) for use or possession of a firearm in connection with the felony offense
of reckless endangerment violating Maryland state law based on his involvement in a
shooting incident, calculated a Guidelines range of 27 to 33 months’ imprisonment, and
sentenced Handy to 24 months’ imprisonment.
On appeal, Handy challenges this prison term, arguing that the district erred by not
considering – with respect to his assertion of self-defense to the offense of reckless
endangerment – if his escape route from the shooting incident was safe and, to the extent
the court considered the escape route to be safe, that the conclusion that the route was safe
was clearly erroneous. Handy also maintains that the district court erred in its explanation
of the sentence by failing to consider his argument regarding the deterrent effect of being
shot in the chest and almost dying made in support of a sentence at the low end of the
15-to-21-month Guidelines range that he asserted would apply if the enhancement under
USSG § 2K2.1(b)(6)(B) did not. We affirm. 1
1 During the pendency of this appeal, Handy was released from prison. We nevertheless conclude that, because Handy is still serving a three-year term of supervised release, this appeal is not moot. See United States v. Ketter, 908 F.3d 61, 65– 66 (4th Cir. 2018).
2 USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 3 of 7
“As a general matter, in reviewing any sentence ‘whether inside, just outside, or
significantly outside the Guidelines range,’ we apply a ‘deferential abuse-of-discretion
standard.’” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)). Under this standard, we review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v. Bolton,
858 F.3d 905, 911 (4th Cir. 2017). “We first review for procedural errors; if and only if,
we find no such procedural errors may we assess the substantive reasonableness of a
sentence.” Id. (cleaned up). In evaluating the procedural reasonableness of a sentence, we
assess whether the district court improperly calculated the Guidelines range, failed to
consider the 18 U.S.C. § 3553(a) factors, or failed to adequately explain the chosen
sentence. United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020).
“It is well established[, however,] that we will not vacate a sentence if we determine
that the district court’s improper calculation of the Guidelines advisory sentencing range
was harmless.” United States v. Mills, 917 F.3d 324, 330 (4th Cir. 2019). As the
Government suggests, we need not resolve Handy’s challenges to the district court’s
Guidelines ruling but may instead “proceed directly to an assumed error harmlessness
inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal
quotation marks omitted). A sentencing error is harmless if: “(1) the district court would
have reached the same result even if it had decided the Guidelines issue the other way, and
(2) the sentence would be reasonable even if the Guidelines issue had been decided in the
defendant’s favor.” Mills, 917 F.3d at 330 (cleaned up). Here, the first prong of the inquiry
is easily met. The district court stated after imposing the 24-month term that it would have
3 USCA4 Appeal: 19-4444 Doc: 45 Filed: 03/24/2022 Pg: 4 of 7
found that sentence reasonable had the four-level enhancement under § 2K2.1(b)(6)(B) not
necessarily applied and noted in its statement of reasons that the sentence imposed would
have been the same even if the four-level enhancement was inapplicable. See id. (noting
that record in a case may show “that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range” and concluding that court’s statement that
particular prison term was one it would have imposed even had another Guidelines range
been applicable met the first prong of the inquiry (internal quotation marks omitted)). “We
therefore proceed to the second prong of the inquiry, whether the district court’s sentence
[is] substantively reasonable.” Id. at 331 (internal quotation marks omitted).
In reviewing the substantive reasonableness of a variant sentence, we “consider
whether the sentencing court acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence from the sentencing range.”
United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). Although a district court’s “explanation for the sentence must support the degree
of the variance, it need not find extraordinary circumstances to justify a deviation from the
Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (cleaned up).
Because this court’s review is ultimately for an abuse of discretion, we accord “due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal
quotation marks omitted). In this posture, even if “we might reasonably conclude that a
different sentence is appropriate, that conclusion, standing alone, is an insufficient basis to
vacate the district court’s chosen sentence.” Id. (cleaned up).
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Applying these principles, we conclude that Handy’s 24-month prison term does not
amount to an abuse of discretion under the totality of the circumstances, even if the
applicable Guidelines range was the 15-to-21-month prison range for which Handy had
advocated. The district court provided a sufficiently detailed explanation of the applicable
§ 3553(a) factors motivating its chosen sentence, focusing primarily on the nature and
circumstances of Handy’s offense conduct and the danger posed by it, noting that Handy
had not only had displayed “very poor judgment” and “really poor decision making” in
illegally possessing a stolen revolver he had “no business” possessing but also had
discharged it during the shooting incident and then attempted to discard it by trying to
throw it onto the roof of a nearby club, acts it viewed as posing a high probability of death
or serious injury to others. The court noted Handy’s personal characteristics, his
acceptance of responsibility and remorse, the physical and mental effects he sustained as a
result of being shot, and his community and family involvement. The court explained that
the sentence also was warranted to promote deterrence and to reflect the “extraordinarily
serious” nature of Handy’s criminal conduct. In sum, the district court acted well within
its discretion in determining that the applicable sentencing factors warranted a 24-month
prison term, regardless of the alleged error in the application of the four-level enhancement
under USSG § 2K2.1(b)(6)(B). See United States v. Rivera-Santana, 668 F.3d 95, 105
(4th Cir. 2012) (stating it was within district court’s discretion to accord more weight to a
host of aggravating factors in defendant’s case and decide that the sentence imposed would
serve the § 3553 factors on the whole).
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Handy raises on appeal no challenge to the substantive reasonableness of the
24-month prison term. Rather, he raises an additional challenge relative to its procedural
reasonableness, arguing that, as evidenced by its explanation, the district court did not
consider his mitigating argument made in support of a 15-month prison term, namely, that
being shot during the shooting incident and almost dying would deter him from future
criminal conduct. We, however, “have consistently framed our reasonableness inquiry in
[assumed error harmlessness] review as being focused on substantive reasonableness.”
Mills, 917 F.3d at 332 (internal quotation marks omitted).
Because the “dispositive question” of whether the 24-month prison term is
substantively reasonable under the facts of this case, see United States v. Hargrove,
701 F.3d 156, 163 (4th Cir. 2012), cited with approval in Mills, 917 F.3d at 332, is
answered in the affirmative, we affirm the criminal judgment. 2 We deny Handy’s motion
for expedited oral argument and dispense with oral argument because the facts and legal
2 After the completion of formal briefing in this case, we entered an order directing the parties to file supplemental briefs on the impact, if any, of Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) (holding “that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm”), and United States v. Gary, 954 F.3d 194, 200, 208 (4th Cir. 2020) (holding that “a standalone Rehaif error satisfies plain error review because such an error is structural, which per se affects a defendant’s substantial rights,” and warrants correction on appeal), on Handy’s conviction. Following entry of that order, the Government moved without objection to suspend supplemental briefing, and we granted that motion. Later, in June 2021, the Supreme Court reversed this court’s decision in Gary. Greer v. United States, 141 S. Ct. 2090, 2101 (2021). Given that reversal, and consistent with our decision in United States v. Johnson, 812 F. App’x 126, 127 n.* (4th Cir. 2020) (No. 19-4008) (finding waived claim of Rehaif error not raised in opening brief filed after decision had issued), we decline to continue with supplemental briefing.
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contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED