United States v. Frank Oliver, III

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 18, 2023
• Docket: 22-4188
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4188

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK LOUIS OLIVER, III,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:20-cr-00107-KDB-DCK-1)

Submitted: September 14, 2023 Decided: September 18, 2023

Before WILKINSON, GREGORY, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Joshua B. Howard, GAMMON HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Frank Louis Oliver, III, was convicted by a jury of two counts of distribution of 28

grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district

court sentenced Oliver to 108 months’ imprisonment. On appeal, Oliver contends that his

sentence is unreasonable because the district court failed to adequately address defense

counsel’s sentencing arguments and failed to adequately explain the supervised release

condition prohibiting Oliver from associating with known felons. Finding no error, 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). When considering a

challenge to the reasonableness of a sentence imposed by the district court, “we consider

both substantive reasonableness, considering the totality of the circumstances, and

procedural reasonableness, ensuring that the district court committed no significant

procedural error, such as miscalculating the sentencing guidelines, failing to consider the

[18 U.S.C.] § 3553(a) criminal and personal history factors, or selecting a sentence based

on erroneous facts.” United States v. Zelaya, 908 F.3d 920, 930 (4th Cir. 2018) (internal

quotation marks and brackets omitted). We review for procedural errors first and consider

the substantive reasonableness of the sentence only if we find no procedural errors. See

United States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017). A sentence must be “sufficient,

but not greater than necessary,” to accomplish the § 3553(a) sentencing goals. 18 U.S.C.

§ 3553(a). A sentence within a properly calculated Guidelines range is presumptively

substantively reasonable. United States v. Smith, 919 F.3d 825, 841 n.12 (4th Cir. 2019).

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That presumption “can only be rebutted by showing that the sentence is unreasonable when

measured against the 18 U.S.C. § 3553(a) factors.” United States v. Gutierrez, 963 F.3d

320, 344 (4th Cir. 2020) (internal quotation marks omitted).

We conclude that Oliver’s sentence was procedurally reasonable, as the record

demonstrates that the district court appropriately considered the sentencing factors and the

brief arguments presented by defense counsel and adequately explained its reasons for

imposing the chosen sentence. Specifically, the court noted its hope that the chosen

sentence would “be a deterrent” and questioned Oliver about the kinds of vocational

programs he wanted to participate in while incarcerated. However, the court found other

factors such as Oliver’s personal characteristics and history more significant and focused

on these factors during its sentencing explanation. Finding no procedural error, we turn to

the substantive reasonableness of Oliver’s sentence and further conclude that Oliver has

failed to rebut the presumption that his within-Guidelines sentence is reasonable. See id.

We therefore conclude that Oliver’s sentence is both procedurally and substantively

reasonable.

Oliver also contends that the district court erred by not providing an adequate

explanation for the condition of supervised release requiring him not to associate with

known felons. To preserve a challenge to proposed conditions of supervised release,

objections “must be made with sufficient specificity so as reasonably to alert the district

court of the true ground for the objection.” United States v. Elbaz, 52 F.4th 593, 611

(4th Cir. 2022) (internal quotation marks omitted), petition for cert. filed, No. 22-1055

(U.S. May 1, 2023). Because Oliver did not object to the supervised release conditions,

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our review is for plain error. Id. at 612; United States v. McMiller, 954 F.3d 670, 675

(4th Cir. 2020). “To establish plain error, [Oliver] must show that an error occurred, that

it was plain, and that it affected his substantial rights.” McMiller, 954 F.3d at 674. Oliver

also must show that the error “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id. (internal quotation marks omitted).

The district court must explain any special condition of supervision. United

States v. Arbaugh, 951 F.3d 167, 178 (4th Cir. 2020). Although the court “need not

robotically tick through an explanation for each supervised release condition,” it “must

offer enough of an explanation to satisfy us that it considered the parties’ arguments and

had a reasoned basis for exercising its own legal decision-making authority.” United

States v. Sueiro, 59 F.4th 132, 143 (4th Cir. 2023) (cleaned up). The reasons for some

special conditions of supervision may be “so self-evident and unassailable” that a

particularized explanation may be unnecessary. Id. (internal quotation marks omitted).

Accordingly, a district court must specifically explain the reasons for imposing a

discretionary condition of supervised release unless (1) the reasons are “self-evident,”

(2) the defendant raised no nonfrivolous objections to the condition, and (3) the court

provided an adequate explanation for the sentence as a whole. United States v. Boyd, 5

F.4th 550, 559 (4th Cir. 2021) (internal quotation marks omitted); see United States v.

Aplicano-Oyuela, 792 F.3d 416, 425 (4th Cir. 2015) (“A court’s sentencing

rationale[] . . . can support both imprisonment and supervised release.”). “[W]e have never

required that a district court conduct two § 3553(a) analyses, one related to the term of

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imprisonment and a second related to the term of supervised release.” Id. (quoting United

States v. Clark, 726 F.3d 496, 501 (3d Cir. 2013)).

In announcing Oliver’s sentence, the district court provided a thorough explanation

of the sentence as a whole, focusing particularly on Oliver’s extensive criminal history and

personal characteristics. In view of the nature of the crime and Oliver’s history of

recidivism, we conclude that the district court’s reasons for imposing the challenged

supervised release condition are self-evident. Accordingly, we discern no plain error, see

Boyd, 5 F.4th at 559; McMiller, 954 F.3d at 674, and we affirm this condition of supervised

release.

Accordingly, we affirm the criminal judgment. 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