United States v. Demario Himbry

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 19, 2023
• Docket: 22-4170
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4170

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARIO TYAIR HIMBRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:21-cr-00045-D-1)

Submitted: October 17, 2023 Decided: October 19, 2023

Before AGEE, HARRIS, and RICHARDSON, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

ON BRIEF: Walter H. Paramore, III, LAW OFFICES OF W.H. PARAMORE, III, Jacksonville, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Demario Tyair Himbry pleaded guilty to possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Himbry to 120

months of imprisonment and he now appeals. On appeal, counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues

for appeal, but questioning whether the district court correctly applied a Sentencing

Guidelines enhancement for possession of the firearm in connection with another felony

offense. Although he was informed of his right to file a pro se supplemental brief, Himbry

has not done so. For the following reasons, we affirm the conviction and sentence, but

remand for correction of the judgment.

We review “all sentences—whether inside, just outside, or significantly outside the

Guidelines range—under a deferential abuse-of-discretion standard.” United States v.

Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (cleaned up). We first must “ensure that

the district court committed no significant procedural error,” such as improperly

calculating the Guidelines range, insufficiently considering the 18 U.S.C. § 3553(a)

factors, or inadequately explaining the selected sentence. United States v. Fowler, 948

F.3d 663, 668 (4th Cir. 2020) (internal quotation marks omitted). “If the sentence is

procedurally sound, we then consider its substantive reasonableness under a deferential

abuse-of-discretion standard.” United States v. Williams, 5 F.4th 500, 510 (4th Cir. 2021)

(internal quotation marks omitted).

When reviewing a district court’s application of the Guidelines, we review the

district court’s legal conclusions de novo and its factual conclusions for clear error. United

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States v. Allen, 909 F.3d 671, 677 (4th Cir. 2018). “[C]lear error exists only when the

reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. Slager, 912 F.3d 224, 233 (4th Cir. 2019)

Under the Guidelines, a defendant faces a four-level enhancement to his offense

level if he “used or possessed any firearm or ammunition in connection with another felony

offense.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2021). A firearm is used

in connection with another felony offense if it “facilitated, or had the potential of

facilitating, another felony offense.” USSG § 2K2.1 cmt. n.14(A). “This requirement is

satisfied if the firearm had some purpose or effect with respect to the other offense,

including if the firearm was present for protection or to embolden the actor.” United

States v. McKenzie-Guide, 671 F.3d 452, 464 (4th Cir. 2011) (internal quotation marks

omitted).

Here, Himbry distributed heroin and fentanyl to another in exchange for the firearm.

His distribution of the drugs, therefore, had the purpose of his taking possession of the

firearm. Counsel suggests that the enhancement should not apply because, even though

Himbry traded the drugs for the firearm, it was not clear whether the transfer occurred

simultaneously. However, as the district court concluded, whether the exchange occurred

at the same time is irrelevant to the question of whether the firearm facilitated the

distribution of the drugs. Himbry would not have distributed the drugs but for his receipt

of the firearm. The district court thus correctly applied the enhancement in USSG

§ 2K2.1(b)(6)(B).

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In addition to the procedural and substantive requirements of sentencing, a district

court must orally pronounce all nonmandatory conditions of supervised release at the

sentencing hearing. United States v. Rogers, 961 F.3d 291, 296-99 (4th Cir. 2020). This

“requirement . . . gives defendants a chance to object to conditions that are not tailored to

their individual circumstances and ensures that they will be imposed only after

consideration of the factors set out in [18 U.S.C.] § 3583(d).” Id. at 300.

Here, the district court announced the nonmandatory conditions of supervision at

the sentencing hearing. However, in imposing the special conditions of supervised release,

the district court ordered that Himbry must support his “children,” while the written

judgment instead requires Himbry to support his “dependents.” Therefore, there is a

conflict between the oral pronouncement of this condition and the written judgment. “To

the extent of any conflict between [the] written order and the oral sentence, the latter is

controlling.” United States v. Morse, 344 F.2d 27, 29 n.1 (4th Cir. 1965). This type of

conflict can be resolved by allowing the district court “to correct the written judgment so

that it conforms with the sentencing court’s oral pronouncements.” Id. Thus, we remand

for the district court to correct the written judgment.

We have reviewed the entire record in accordance with Anders and have found no

meritorious issues for appeal. We therefore affirm Himbry’s conviction and sentence, and

remand to the district court with instructions to correct the written judgment to conform

with the court’s oral pronouncement of Himbry’s sentence that Himbry support his

“children.” This court requires that counsel inform Himbry, in writing, of the right to

petition the Supreme Court of the United States for further review. If Himbry requests that

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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 Himbry.

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 AND REMANDED