United States v. Jamario Hill

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 2, 2018
• Docket: 16-4333
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4333

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMARIO CURTIS HILL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00100-FDW-1)

Submitted: March 29, 2018 Decided: April 2, 2018

Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Anthony Martinez, Federal Public Defender, Ann L. Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jamario Curtis Hill appeals his conviction and 58-month sentence imposed

following his guilty plea to possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1) (2012). On appeal, Hill’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds

for appeal but questioning whether the district court erred in applying an enhanced base

offense level. Hill was notified of his right to file a pro se supplemental brief but has not

done so. The Government has declined to file a response brief. For the reasons that

follow, 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). We first

determine whether the district court committed significant procedural error, such as

incorrect calculation of the Sentencing Guidelines range, inadequate consideration of the

18 U.S.C. § 3553(a) (2012) factors, or insufficient explanation of the sentence imposed.

United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).

In evaluating the district court’s Guidelines calculations, we review the district

court’s factual findings for clear error and its legal conclusions de novo. United States v.

White, 771 F.3d 225, 235 (4th Cir. 2014). We review unpreserved Guidelines challenges

for plain error. United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015); see

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343, 1345 (2016) (describing

standard).

2 If we find no procedural error, we examine the substantive reasonableness of the

sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51. The sentence

imposed must be “sufficient, but not greater than necessary,” to satisfy the goals of

sentencing. See 18 U.S.C. § 3553(a). We presume on appeal that a within-Guidelines

sentence is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014). Hill bears the burden to rebut this presumption “by showing that the sentence

is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.

In his Anders brief, counsel advises that Hill has questioned the impact of

Johnson v. United States, 135 S. Ct. 2551 (2015), on his enhanced base offense level.

Hill received an enhanced base offense level based on the sentencing court’s finding that

he committed his underlying federal offense “subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense.” U.S.

Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2015); see USSG § 4B1.2(a) (defining

“crime of violence”). As a predicate crime of violence for the enhancement, the court

relied upon Hill’s prior North Carolina conviction for robbery with a dangerous weapon.

In light of recent authority, we conclude that there was no procedural error in

calculating the sentence. In Johnson, the Supreme Court determined that the residual

clause of the Armed Career Criminal Act (ACCA), reaching offenses that “involve[]

conduct that presents a serious potential risk of physical injury to another,” see 18 U.S.C.

§ 924(e)(2)(B)(ii) (2012), is unconstitutionally vague. 135 S. Ct. at 2556-63. In Beckles

v. United States, 137 S. Ct. 886 (2017), however, the Supreme Court declined to extend

the reasoning in Johnson to the Guidelines, holding that the Guidelines are not subject to

3 a due process vagueness challenge and that the residual clause under USSG § 4B1.2(a) is

not void for vagueness. 137 S. Ct. at 895. In light of Beckles, Hill cannot raise a

vagueness challenge to his predicate crimes of violence under Johnson. Further, any

potential challenge Hill could raise to the classification of his predicate conviction as a

crime of violence is foreclosed by recent authority from this court. See United States v.

Burns-Johnson, 864 F.3d 313, 315 (4th Cir.) (holding that North Carolina robbery with

dangerous weapon categorically qualifies as violent felony under ACCA’s force clause),

cert. denied, 138 S. Ct. 461 (2017) ; see also United States v. Montes-Flores, 736 F.3d

357, 363 (4th Cir. 2013) (recognizing that decisions evaluating whether offense qualifies

as ACCA violent felony are used interchangeably with decisions evaluating whether

offense qualifies as Guidelines crime of violence). Thus, we find no error, plain or

otherwise, in Hill’s enhanced base offense level.

Our review of the record reveals that Hill’s sentence is reasonable. The district

court properly calculated Hill’s Guidelines range and sentenced him below the advisory

Guidelines range and the applicable statutory maximum. The court considered the

parties’ arguments in sentencing Hill and articulated a reasoned basis for the sentence it

imposed, grounded in the 18 U.S.C. § 3553(a) factors. Further, Hill fails to rebut the

presumption of reasonableness accorded his below-Guidelines sentence. See Louthian,

756 F.3d at 306.

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

have found no meritorious issues for appeal. We therefore affirm Hill’s conviction and

sentence. This court requires that counsel inform Hill, in writing, of the right to petition

4 the Supreme Court of the United States for further review. If Hill 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 Hill.

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