USCA4 Appeal: 19-4178 Doc: 92 Filed: 01/18/2023 Pg: 1 of 19
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4178
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEORGE DARRIN FOWLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Timothy M. Cain, District Judge. (6:16−cr−00603−TMC−1)
Argued: December 9, 2022 Decided: January 18, 2023
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: William Wharton Watkins, Sr., WILLIAM R. WATKINS, PA, Columbia, South Carolina, for Appellant. Andrew R. de Holl, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Miller W. Shealy, Jr., MILLER SHEALY LAW FIRM, Charleston, South Carolina, for Appellant. Corey F. Ellis, United States Attorney, Adair F. Boroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. USCA4 Appeal: 19-4178 Doc: 92 Filed: 01/18/2023 Pg: 2 of 19
WILKINSON, Circuit Judge:
George Darrin Fowler pled guilty to two federal weapons charges after local law
enforcement executed a search warrant at his residence and discovered a multitude of
firearms, ammunition, and drugs. The district court sentenced Fowler to 117 months’
imprisonment, at the lowest end of his advisory Sentencing Guidelines range. Fowler’s
appellate counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967). We ordered supplemental briefing and oral argument on two issues– (1) whether
the district court plainly erred in assigning one criminal history point to Fowler’s criminal
domestic violence offense; and (2) whether the district court adequately explained its
rejection of Fowler’s nonfrivolous arguments for a downward departure or variance. For
the reasons that follow, we affirm the judgment of the district court.
I.
A.
After a confidential informant purchased methamphetamine from Fowler during a
controlled-buy operation, the Greenville County Sheriff’s Office executed a search warrant
at Fowler’s residence on July 27, 2016. In total, officers recovered 21 firearms, a
muzzleloader, one gram of methamphetamine, 20 grams of marijuana, and over 600 rounds
of assorted ammunition. Fowler was interviewed that same day and confessed that the guns
and drugs were his, that he had been selling methamphetamine for a year, and that he had
obtained some of the firearms as payment for drugs.
A federal grand jury then charged Fowler with (1) possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)
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(Count 1); (2) possession of firearms and ammunition by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count 2); and (3) possession of firearms in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3).
Fowler pled guilty without a plea agreement to Counts 2 and 3. The government voluntarily
dismissed Count 1.
Following his plea, a probation officer assembled Fowler’s presentence report
(PSR), determining that Fowler had two prior adjudications that earned criminal history
points. First was Fowler’s 2003 conviction for South Carolina second-degree burglary and
petty larceny, which earned three points pursuant to U.S.S.G. § 4A1.1(a). Second was a
2013 South Carolina criminal domestic violence (CDV) offense, for which a state court
directed Fowler to participate in an “Addcare 26 Week Program,” a domestic violence
intervention program. Little else about the offense was listed in the PSR. It stated instead
that “[a]ttorney representation and facts of the offense are unknown due to a ticket being
issued.” Joint App’x (J.A.) Vol. II at 11. The probation officer assigned Fowler one point
for this offense, however, pursuant to U.S.S.G. § 4A1.1(c).
These previous adjudications resulted in a Criminal History Category III, with the
point assigned to the CDV offense moving Fowler up from a Criminal History Category
II. Overall, with this score and other offense-level adjustments, including a four-level
enhancement for the number of firearms recovered, Fowler’s advisory guidelines range
was 117 to 131 months imprisonment: 57–71 months for Count 2, plus a statutorily-
required 60 months for Count 3, to run consecutively.
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Fowler’s counsel objected initially only to certain offense-level issues in the PSR.
But in a supplemental memorandum in support of a downward departure or variance,
Fowler’s counsel urged the district court to impose a lesser sentence. Counsel argued that
the guidelines range of 57 to 71 months for Count 2 overstated the seriousness of Fowler’s
culpable conduct, believing that a range of 41 to 51 months was more appropriate. Counsel
argued that instead of imposing a sentence in that range, Fowler should receive a five-year
sentence for Count 2 to run concurrently with the mandatory minimum five-year sentence
for Count 3.
In support of this request, counsel first argued that the court should depart
downward to Criminal History Category II because Category III overstated the seriousness
of Fowler’s criminal history. He believed that the CDV offense “should not be counted due
to [Fowler’s] court-ordered attendance of an Addcare Program in lieu of incarceration, and
due to the lack of information available regarding attorney representation and the facts of
the offense.” J.A. Vol. II at 28. Counsel explicitly stated, however, that “[t]he inadequacy
of the information limit[ed] [Fowler’s] ability to challenge the conviction’s eligibility to
be counted for Guideline purposes.” Id.
Counsel made additional arguments to support a downward departure or variance.
He argued that the base offense level of 24 for Count 2 overstated the defendant’s
culpability and the offense conduct, observing that (1) several of the recovered firearms
were military firearms and family heirlooms that were likely inoperable; (2) Fowler had
not obtained the firearms through an illegal gun market; (3) one firearm belonged to
Fowler’s wife; and (4) most, if not all, of the firearms were not easily accessible. Moreover,
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in support of his request for concurrent sentences, counsel believed that imposing
consecutive sentences would subject Fowler “to disproportionate punishment,” as Fowler
had not “engaged in separate and distinct criminal acts that gave rise to [both charges]”
since both Count 2 and 3 had “possession” as an element and the only thing distinguishing
them was Fowler’s prior felony conviction. Id. at 31.
Finally, counsel argued that other circumstances existed to support a variance from
the 57 to 71 months range for Count 2. These included: (1) Fowler suffers from a drug
addiction and would benefit from rehabilitation; (2) Fowler had a troubled childhood and
early adulthood; (3) Fowler had significant familial responsibilities due to his wife having
crippling rheumatoid arthritis; (4) Fowler had strong support from family and friends; and
(5) Fowler acknowledged the wrongfulness of his conduct.
B.
At sentencing, the district court confirmed that it had reviewed the plea hearing, the
PSR, and defense counsel’s sentencing memoranda. Fowler’s counsel withdrew all of his
objections to the PSR and instead sought to rely solely on his variance motion. As a result,
the district court adopted the factual findings set forth in the PSR, which included Fowler’s
conviction for CDV.
The government urged the district court to impose a within-Guidelines sentence.
Fowler’s counsel requested that the district court vary downward and impose a 60-month
sentence. Counsel recited the main points from his earlier motion, adding an argument
about Fowler’s attempted cooperation with the government.
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After listening to counsel’s argument on Fowler’s behalf, and after hearing from
Fowler and his wife, the district court considered the variance motion. The court rejected
Fowler’s argument that he was a mere innocent collector of firearms. The court explained
that it understood Fowler “liked collecting these firearms,” but it observed that he also “had
a bunch of ammunition.” J.A. Vol. I at 18. The court additionally reminded Fowler that he
had previously admitted, and the PSR reflected, that Fowler “had been selling for
methamphetamine for about a year and that some of the firearms were obtained on trades
for drugs.” Id. at 20.
The district court confirmed that it had “considered all of the information presented
[at the hearing] and the arguments of counsel.” Id. at 21. It then considered the sentencing
factors listed in 18 U.S.C. § 3553(a). The court observed that Fowler’s criminal history
began in 1988 and that he had been convicted of many different crimes, even if most did
not earn criminal history points. The court found that Fowler “clearly” has “a drug
problem.” Id. at 23. Addressing the seriousness of the offense, the district court found that
the government had “a legitimate and compelling interest in preventing this type of activity,
including drug activity and possession of firearms and ammunition by convicted felons,”
as “there [was] an increased opportunity for violence and injury” when “there [was] a mix
of drugs and firearms.” Id. at 23–24. The court also found that Fowler’s “conduct in this
case and the serious nature of these offenses and his prior criminal history reflect[ed] some
lack of respect for the law.” Id. at 24. It further remarked that Fowler’s “involvement with
the criminal justice system ha[d] failed to deter him from committing serious offenses” and
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expressed “hope[] that the sentence imposed” would “impact him in a positive way so as
to deter future criminal conduct on his part.” Id.
The district court confirmed that it had “carefully reviewed” counsel’s motions for
a downward departure or variance, but said that it was “going to respectfully deny those
motions based on the totality of the circumstances and the application of the [§] 3553(a)
factors . . . .” Id. at 24. Specifically, the court cited “the nature and circumstances of the
offense, the history and characteristics of [Fowler], and the need for the sentence to reflect
the seriousness of the offense, promote respect for the law, provide just punishment,
promote adequate deterrence to future criminal conduct, and protect the public from further
crimes of [Fowler].” Id. at 24–25.
The district court sentenced Fowler to 117 months’ imprisonment: 57 months for
Count 2 plus 60 months for Count 3. This was the lowest end of Fowler’s advisory
guidelines range. The court advised Fowler of his right to appeal and asked if there were
“any substantive or procedural errors or omissions to be brought to the attention of the
[c]ourt . . . .” Id. at 26–27. Fowler’s counsel and the government had no objections. Id. at
27.
C.
After the district court entered its judgment, Fowler’s trial counsel failed to timely
appeal. Thereafter, Fowler filed a 28 U.S.C. § 2255 motion arguing, among other points,
that counsel rendered ineffective assistance by failing to file an appeal after Fowler directed
him to do so. The district court then granted the motion, vacated its original judgment, and
reinstated that judgment so that Fowler could file an appeal.
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Fowler was provided appellate counsel, who subsequently filed an Anders brief,
believing that there were no meritorious grounds to appeal Fowler’s conviction and
sentence. Counsel did suggest that the district court erred in refusing to grant Fowler’s
request for a downward departure or variance. Fowler then filed a pro se brief. 1 The
government declined to file a responsive brief.
After conducting our review pursuant to Anders, we sought supplemental briefing
to address whether the district court (1) plainly erred in assigning one criminal history point
to Fowler’s CDV offense; and (2) failed to adequately explain why it rejected Fowler’s
nonfrivolous arguments for a downward departure or variance in the sentence rendered. 2
After this court received the requested supplemental briefing, we ordered more detailed
briefing asking whether the government had the burden of establishing that Fowler’s
sentence of participation in the Addcare domestic violence program counted as a “sentence
previously imposed upon adjudication of guilt” under U.S.S.G. § 4A1.2(a)(1), and if so,
1 Fowler filed two additional pro se supplemental briefs months after the deadline and without seeking leave from this court. We decline to consider them. See United States v. Cheeseboro, 757 F. App’x 224, 226 (4th Cir. 2018) (denying motion for leave to file supplemental pro se brief in an Anders case because defendant filed it after deadline and did not attach proposed brief). Even if we were to formally consider these untimely briefs, we believe the arguments raised to be without merit. 2 After this court ordered its first round of supplemental briefing from appellate counsel, Fowler again filed a pro se brief without seeking leave from this court. Since his appellate counsel filed a supplemental merits brief as we directed, we decline to consider the arguments raised in Fowler’s pro se brief. United States v. Cohen, 888 F.3d 667, 682 (4th Cir. 2018) (“[A]n appellant who is represented by counsel has no right to file pro se briefs or raise additional substantive issues in an appeal.”). Even if we were to formally consider these additional arguments, see id. at 682, we believe them to be without merit.
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whether the government met that burden. We also granted Fowler’s motion to relieve his
appellate counsel but denied a pending motion to proceed pro se. New counsel was
appointed for the second round of supplemental briefing and oral argument.
II.
We find no reversible error in this case. As a general proposition, this court reviews
a criminal sentence for reasonableness “under a deferential abuse-of-discretion standard.”
United States v. Williams, 5 F.4th 500, 505 (4th Cir. 2021). “Reasonableness review has
procedural and substantive components.” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010). Procedural reasonableness requires us to “ensure that the district
court committed no significant procedural error,” which includes “improperly
calculating . . . the Guidelines range.” United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
2012) (internal quotation marks omitted). Any claim of error that was not pursued and
preserved in the district court is reviewed only for plain error. United States v. Olano, 507
U.S. 725, 731–37 (1993).
III.
We begin with Fowler’s CDV offense. Fowler’s PSR assessed one criminal history
point for his CDV conviction and sentence of participation in the Addcare 26-Week
Program, which resulted in an overall Criminal History Category III. Fowler argues that
the district court erred in assigning this point, as the government did not prove that Fowler’s
sentence was “previously imposed upon adjudication of guilt, whether by guilty plea, trial
or plea of nolo contendere.” U.S.S.G. § 4A1.2(a)(1). Fowler did not specifically object to
the assignment of this point at his sentencing. He even went as far as to withdraw all factual
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objections to the PSR, J.A. Vol. I at 7–8, and thus plain error review controls. See United
States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014); Order, United States v. Fowler, No.
19-4178, ECF No. 39 (4th Cir. Feb. 4, 2022) (ordering supplemental briefing under plain
error review).
Therefore, Fowler must show that: (1) assignment of this additional criminal history
point was error; (2) the error was plain; and (3) the error affected his substantial rights,
which generally means that there must be “a reasonable probability that, but for the error,
the outcome of the proceeding would have been different.” Rosales-Mireles v. United
States, --- U.S. ----, 138 S. Ct. 1897, 1904–05 (2018) (internal quotation marks omitted).
If Fowler carries this burden, we “may grant relief if” we conclude “that the error had a
serious effect on the fairness, integrity or public reputation of judicial proceedings.” Greer
v. United States, --- U.S. ----, 141 S. Ct. 2090, 2096–97 (2021) (internal quotation marks
omitted). As the Supreme Court has admonished, “[s]atisfying all four prongs of the plain-
error test is difficult.” Id. at 2097 (internal quotation marks omitted).
The Sentencing Guidelines’ criminal history provisions assign a specified number
of criminal history points for each of a defendant’s prior sentences. A “prior sentence of
imprisonment” exceeding thirteen months earns three points, U.S.S.G. § 4A1.1(a), whereas
a “prior sentence of imprisonment” between 60 days and thirteen months gets two points,
id., § 4A1.1(b). The guidelines also assign one criminal history point for any “prior
sentence” of less than 60 days. Id., § 4A1.1(c). The term “prior sentence” is defined as “any
sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or
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plea of nolo contendere, for conduct not part of the instant offense.” Id., § 4A1.2(a)(1); see
also United States v. Martinez-Melgar, 591 F.3d 733, 737 (4th Cir. 2010).
The Sentencing Guidelines provide also that only some diversionary dispositions
may be counted as a “prior sentence” under Section 4A1.1(c). “Diversion from the judicial
process without a finding of guilt” does not count as a prior sentence. U.S.S.G. § 4A1.2(f).
But a “diversionary disposition resulting from a finding or admission of guilt, or a plea of
nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.2(c) even if
a conviction is not formally entered[.]” Id. The commentary to § 4A1.2 spells this out more
explicitly: a diversionary disposition qualifies as a “prior sentence” only if it results from
“a judicial determination of guilt or an admission of guilt in open court.” Id., § 4A1.2, cmt.
9. “[A]dding a criminal history point where there has been a prior adjudication of guilt
reflects a policy that defendants who receive the benefit of a rehabilitative sentence and
continue to commit crimes should not be treated with further leniency.” United States v.
Miller, 992 F.3d 322, 326 (4th Cir. 2021) (internal quotation marks omitted).
Fowler argues that the district court improperly relied on the PSR in assigning one
criminal history point because the government failed to prove that his CDV conviction was
“previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of
nolo contendere.” U.S.S.G. § 4A1.2(a)(1). It is true that limited information existed in the
PSR about the CDV offense, and that the PSR stated the “facts of the [CDV] offense are
unknown due to a ticket being issued.” J.A. Vol. II at 10. We need not go as far as Fowler
suggests, however.
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As this court has held in the sentencing context, the “defendant has an affirmative
duty to make a showing that the information in the presentence report is unreliable, and
articulate the reasons why the facts contained therein are untrue or inaccurate.” United
States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Without such a showing, “the
government meets its burden of proving those facts by a preponderance of the evidence,
and the district court is free to adopt the findings of the presentence report without more
specific inquiry or explanation.” United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir.
2006) (internal quotation marks omitted).
Fowler made no such showing; instead, he withdrew all objections about the PSR
to rely on his arguments in favor of a downward departure or variance. Indeed, at oral
argument, Fowler’s counsel conceded that trial counsel affirmatively waived any objection
to the PSR. Oral Arg. at 29:11; see also Robinson, 744 F.3d at 298–99 (“[W]hen a claim is
waived, it is not reviewable on appeal, even for plain error.”). Regardless of how this
admission is characterized, the outcome is the same. The district court correctly accepted
the “undisputed portion of the presentence report as a finding of fact,” Fed. R. Crim. P.
32(i)(3)(A), which included the fact of Fowler’s conviction for CDV.
Fowler “stands in the best position to offer a first-hand account of the details of his
own past legal proceedings[.]” United States v. Collins, 415 F.3d 304, 316 (4th Cir. 2005)
(internal quotation marks omitted). This includes whether his conviction for CDV resulted
from a finding or admission of guilt or a nolo contendere plea. This requirement reflects a
general principle of adversarial litigation: “If a litigant believes that an error has occurred
(to his detriment) during a federal judicial proceeding, he must object in order to preserve
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the issue.” Puckett v. United States, 556 U.S. 129, 134 (2009). Since Fowler failed to object
to the PSR’s inclusion of his CDV conviction, we find no error by the district court in
adopting it.
Even assuming arguendo that it was somehow error for the district court to adopt
the PSR without more evidence showing Fowler’s CDV offense resulted from an
admission of guilt, that error is anything but plain. On appeal, the government provided
this court with a “printout from the Greenville County Public Index, a web site of court
records maintained by the South Carolina Judicial Branch, of information regarding
Fowler’s CDV case.” Government Suppl. Br. I at 12, n.5. This printout lists “Guilty Bench
Trial” as the disposition of the offense, and “Addcare 26 week Batterer’s Intervention
Program” as the sentence. Id., Add. 1. This information demonstrates that Fowler’s “prior
sentence” for his CDV conviction was accompanied by an adjudication of guilt.
While appellate courts are normally bound to information contained within the
record, “[w]e may take judicial notice of facts outside the record where the fact may not be
reasonably disputed and is ‘relevant and critical to the matter on appeal.’” United States v.
Townsend, 886 F.3d 441, 444 (4th Cir. 2018) (quoting Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989)). Indeed, we have previously found that the “most frequent
use of judicial notice of ascertainable facts is in noticing the content of court records.”
Colonial Penn Ins. Co,, 887 F.2d at 1239 (internal quotation marks omitted). But a
“judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable
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of accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Id. (internal quotation marks omitted) (alteration in original).
Fowler’s counsel argued that this court should ignore the government’s printout
because (1) it is not a Shepard document 3 and (2) it is unreliable. We disagree. We have
held that “Shepard establishes which documents we may review when applying the
modified categorical approach, but it does not limit courts in deciding whether a conviction
actually exists.” Townsend, 886 F.3d at 443. In United States v. Martinez-Melgar, this court
rejected the same argument counsel is making in this case, noting that “sentencing courts
routinely rely on . . . printouts of computerized records” to determine the fact of conviction
and make criminal-history calculations. 591 F.3d at 738–39.
Counsel’s belief that this document is not “trustworthy” also fails to withstand
scrutiny. Counsel argues that “[t]here has not been a finding that the computer document
is trustworthy” and that the printout “is simply a history kept by a Clerk of Court’s office
that may or may not have back up files . . . .” Appellant Suppl. Br. II at 5. Such an argument
contravenes our decision in United States v. Walker, 922 F.3d 239 (4th Cir. 2019). In
Walker, we held that “where the defendant has not pointed to any evidence casting doubt”
on a government report “being used to support an enhancement, the report may be trusted.”
3 In Shepard v. United States, 544 U.S. 13, 20–21 (2005), the Supreme Court held that sentencing courts may consult only a limited set of sources when determining the nature of a prior conviction for the purpose of applying an Armed Career Criminal Act enhancement. These include: “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record[.]” Id, at 26.
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922 F.3d at 253 (internal quotation marks omitted). Counsel points to no credible evidence
suggesting the Greenville County Public Index printout is untrustworthy, but instead makes
unsupported attacks against its reliability.
In sum, we believe that the district court did not err in assessing Fowler one criminal
history point without more specific evidence regarding the nature of his CDV conviction.
Further, Fowler has not born the heavy burden of satisfying the plain error criteria, as he
cannot prove “that, but for the error, the outcome of the proceeding would be different.”
Rosales-Mireles, 138 S. Ct. at 1904–05 (internal quotation marks omitted). We thus affirm
the district court on this ground.
IV.
We now turn to the question of whether the district court adequately explained its
rejection of Fowler’s non-frivolous arguments for a more lenient sentence. We note that
Fowler preserved this objection through his supplemental variance motion and his
arguments at sentencing. See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010)
(explaining that arguing “for a sentence different than the one ultimately
imposed . . . sufficiently alerts the district court . . . , and thus preserves [the] claim”). We
therefore review Fowler’s sentence for procedural reasonableness under a general abuse-
of-discretion standard. United States v. Martinez-Varela, 531 F.3d 298, 299 (4th Cir. 2008).
We need not reverse the district court, however, if we find any error harmless. Lynn, 592
F.3d at 579.
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For a sentence to be procedurally reasonable, a district court must begin its
sentencing proceeding by “correctly calculating the applicable Guidelines range.” Gall v.
United States, 552 U.S. 38, 49 (2007). Using this range as a jumping off point, the “court
must thereafter give the parties the opportunity to argue for whatever sentence they deem
appropriate and consider those arguments in light of all of the factors stated in 18 U.S.C.
§ 3553(a).” United States v. Hernandez, 603 F.3d 267, 270 (4th Cir. 2010). The court must
then conduct “an individualized assessment based on the facts before the court,
and . . . explain adequately the sentence imposed to allow for meaningful appellate review
and to promote the perception of fair sentencing.” United States v. Lewis, 958 F.3d 240,
243 (4th Cir. 2020) (internal quotation marks omitted).
As part of this individualized assessment, the “district court must address or
consider all non-frivolous reasons presented for imposing a different sentence and explain
why [it] has rejected those arguments.” United States v. Ross, 912 F.3d 740, 744 (4th Cir.
2019). Importantly, “in a routine case, where the district court imposes a within-Guidelines
sentence, the explanation need not be elaborate or lengthy.” United States v. Arbaugh, 951
F.3d 167, 174–75 (4th Cir. 2020) (internal quotation marks omitted). When a district court
has fully addressed the defendant’s “central thesis” during sentencing, it need not “address
separately each supporting data point marshalled” for a downward variance. United States
v. Nance, 957 F.3d 204, 214 (4th Cir. 2020).
We find that the district court adequately addressed Fowler’s non-frivolous
arguments for a downward departure or variance.
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We have reviewed the sentencing transcript and conclude that the district court
meaningfully considered Fowler’s argument for a downward departure or variance and
denied it based on several relevant 18 U.S.C. § 3553(a) factors. These included: Fowler’s
history, characteristics and the nature and circumstances of his offense, the need to promote
respect for the law and provide just punishment, the need for the sentence to reflect the
seriousness of the offense as “[w]henever there is a mix of drugs and firearms, . . . there is
an increased opportunity for violence and injury,” J.A. Vol. I at 24; and the need to afford
adequate deterrence in light of Fowler’s litany of convictions. The court confirmed that it
had reviewed the plea hearing, the PSR, and counsel’s sentencing memorandum, including
the handwritten letters attached to the memorandum from Fowler’s family and friends. We
stress the vigilant analysis that the district court undertook, as it undermines any argument
that the court failed to provide an individualized assessment when determining Fowler’s
sentence. See Arbaugh, 951 F.3d at 174 (the individualized assessment requirement
“focuses on the whole of a defendant’s argument and does not require the court to address
every argument a defendant makes”).
Fowler’s claim that the district court ignored his non-frivolous reasons for a
downward departure or variance in sentencing comes in three parts. The first revolves
around criminal history, the seriousness of which counsel believes was overstated. The
second involves Fowler’s culpability in the offense conduct. Mainly, counsel sought to
downplay the sheer number of firearms recovered from Fowler’s residence, arguing that
Fowler was merely a collector of firearms and had not used them in furtherance of drug
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trafficking activity. The final category of variance arguments involves Fowler’s personal
circumstances. Counsel highlighted Fowler’s significant familial responsibilities, his
ongoing drug problem, his troubled childhood and early adulthood, and the remorse he felt
about his criminal conduct.
The district court adequately addressed the “central thes[e]s” of Fowler’s variance
arguments. Nance, 957 F.3d at 214. We begin with the criminal history argument. Whereas
Fowler tried to discount his criminal history score, the court rightly consulted the laundry
list of his unscored convictions when going through the 18 U.S.C. § 3553(a) factors. As
the district court noted, Fowler’s criminal record was extensive, dating back to 1988, and
encompassing, inter alia, convictions for second-degree burglary, petit larceny, assault and
battery, breach of trust, and possession of drug paraphernalia. The trial court concluded
that Fowler’s “involvement with the criminal justice system has failed to deter him from
committing serious offenses.” J.A. Vol. I at 24.
The district court also engaged with and rejected the argument that Fowler made
with respect to his offense conduct, mainly that he was somehow not culpable for the
number of guns in his residence. After Fowler’s counsel presented his argument for a
downward departure or variance in sentencing, and the court heard from both Fowler and
his wife, the court began by noting that Fowler was not just an innocent collector of
firearms. Rather, he had a “bunch of ammunition” and that some “firearms were obtained
on trades for drugs.” J.A. Vol. I at 18, 20. The volatile “mix of drugs and firearms”
underscored for the court the seriousness of Fowler’s offense conduct. Id. at 24. The court
thus rejected Fowler’s key argument that his offense conduct warranted a downward
18 USCA4 Appeal: 19-4178 Doc: 92 Filed: 01/18/2023 Pg: 19 of 19
departure or variance in sentencing. See United States v. Blue, 877 F.3d 513, 521 (4th Cir.
2017) (“[R]eviewing courts may . . . infer that a sentencing court gave specific attention to
a defendant’s argument for a downward departure if the sentencing court engages counsel
in a discussion about that argument.”).
Finally, as to the arguments regarding Fowler’s personal circumstances, the court
showed that it had considered his drug addiction issues in fashioning its sentence. The court
observed that Fowler “clearly” has “a drug problem.” J.A. Vol. I at 23. As Fowler
requested, the court recommended that he be enrolled in “any drug treatment programs
available to him in prison,” id. at 26, and the court made substance abuse testing a condition
for Fowler’s supervised release, id. See also Nance, 957 F.3d at 213 (inferring
consideration of personal characteristics from a sentence which included drug treatment
when the defendant was a drug addict). The court also heard and responded to Fowler’s
allocution, in which the defendant highlighted the difficult circumstances of his childhood
and expressed his remorse. J.A. Vol. I at 17–18. In sum, “[t]his is not a case where the
district court passively heard the parties’ arguments and then seemed to ignore them.”
United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006). The sentencing was
fairly conducted, and we take no exception to it.
We have reviewed the record in its entirety, and we have found no basis for
disturbing the trial court’s rulings. For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED