United States v. Jamal Sims

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 15, 2023
• Docket: 22-4509
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4509 Doc: 28 Filed: 08/15/2023 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4509

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMAL LAMONT SIMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:19-cr-00147-D-1)

Submitted: July 28, 2023 Decided: August 15, 2023

Before DIAZ, Chief Judge, and MOTZ and KEENAN, Senior Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

ON BRIEF: Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC, Warrenton, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4509 Doc: 28 Filed: 08/15/2023 Pg: 2 of 5

PER CURIAM:

Jamal Lamont Sims pled guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2018) 1 (Count 1), and possession of

marijuana, in violation of 21 U.S.C. § 844(a). The district court sentenced Sims to 78

months’ imprisonment on Count 1 and a concurrent 12 months on Count 2, to be followed

by three years of supervised release on Count 1 and a concurrent one-year term on Count

2. Additionally, the court imposed discretionary conditions of supervised release. Sims

appealed, and we affirmed Sims’ convictions but vacated his sentence and remanded for

resentencing pursuant to United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020) (“[A]ll

non-mandatory conditions of supervised release must be announced at . . . sentencing.”).

United States v. Sims, No. 20-4192, 2022 WL 777199 (4th Cir. Mar. 14, 2022)

(unpublished). On remand, the district court conducted a resentencing hearing and

imposed the same 78-month sentence of imprisonment and three-year term of supervised

release on Count 1 and the same concurrent one-year prison sentence and one-year term of

supervised release on Count 2. The court also orally pronounced the nonmandatory

conditions of supervised release to which Sims would be subjected.

1 Section 924(a)(2) was amended in 2022 and no longer provides the penalty for § 922(g) convictions. The new penalty provision in § 924(a)(8) sets forth a statutory maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer Communities Act, Pub. L. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). The 15-year statutory maximum does not apply in this case, however, because Sims committed his offense before the June 25, 2022, amendment to the statute.

2 USCA4 Appeal: 22-4509 Doc: 28 Filed: 08/15/2023 Pg: 3 of 5

Sims now appeals from the amended criminal judgment entered on remand. Sims’

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious grounds for appeal but questioning whether Sims’ sentence is

reasonable. For the reasons stated below, we affirm Sims’ sentence, but remand for the

correction of the criminal judgment.

We review a sentence for reasonableness by “applying a deferential abuse-of-

discretion standard.” United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020) (internal

quotation marks omitted). In doing so, our “inquiry proceeds in two steps.” United States

v. Friend, 2 F.4th 369, 379 (4th Cir. 2021). We must “first ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider

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

adequately explain the chosen sentence.” Id. (internal quotation marks omitted). “Only if

we determine that the sentence is procedurally reasonable do we then proceed to

substantive reasonableness by considering the totality of the circumstances.” Id. (internal

quotation marks omitted). We “apply a presumption of [substantive] reasonableness to a

sentence within or below a properly calculated [G]uidelines range.” United States v.

Vinson, 852 F.3d 333, 357 (4th Cir. 2017) (internal quotation marks omitted). This

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

measured against the 18 U.S.C. § 3553(a) factors.” Id. at 357-58 (internal quotation marks

omitted).

3 USCA4 Appeal: 22-4509 Doc: 28 Filed: 08/15/2023 Pg: 4 of 5

The district court correctly calculated the advisory Sentencing Guidelines range,

adequately considered the § 3553(a) factors, and provided a meaningful explanation for the

sentence that it chose. See Friend, 2 F.4th at 379. Contrary to counsel for Sims’ contention,

the district court sufficiently addressed defense counsel’s arguments for a lesser sentence.

In particular, the district court noted that Sims had earned his GED and completed prison

programs, recognized Sims’ arguments concerning the difficulties presented by

incarceration during the COVID-19 pandemic, and acknowledged Sims’ clean disciplinary

record. The court emphasized that none of Sims’ expunged convictions had been counted

in establishing his advisory Guidelines range, and that Sims’ criminal record placed him in

criminal history category VI. Additionally, the court opined that Sims’ prior convictions

were troubling, underscoring Sims’ recidivism with regard to illegal firearm possession.

We are satisfied that Sims’ sentence is procedurally reasonable. We also conclude that

nothing in the record rebuts the presumption of substantive reasonableness afforded to

Sims’ within-Guidelines sentence. Vinson, 852 F.3d at 357-58.

We note, however, that in imposing Sims’ supervised release conditions at the

sentencing hearing, the district court ordered Sims to “support [his] children,” while the

written judgment required Sims “to support his dependent(s).” Our precedents direct that

we remedy this discrepancy, see Rogers, 961 F.3d at 296-99 (requiring district court to

announce all nonmandatory conditions of supervised release at the sentencing hearing), by

4 USCA4 Appeal: 22-4509 Doc: 28 Filed: 08/15/2023 Pg: 5 of 5

correcting “the written judgment so that it conforms with the sentencing court’s oral

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

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

found no other meritorious grounds for appeal. We therefore affirm Sims’ sentence and

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

with the district court’s oral pronouncement that Sims “support [his] children,” leaving the

sentence, including the remaining conditions of supervised release, undisturbed.

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

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

2 In the context of this record, which reflects no dependents other than Sims’ children, it is clear that the district court’s intention was to require Sims to support his children.