United States v. John Fowler

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4098

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN CLAUDE FOWLER,

Defendant - Appellant.

No. 19-4099

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:14-cr-00220-WO-1; 1:18-cr-00188- WO-1)

Submitted: September 25, 2019 Decided: October 3, 2019 Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert L. McClellan, IVEY, MCCLELLAN, GATTON & SIEGMUND, LLP, Greensboro, North Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, Kimberly F. Davis, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

John Claude Fowler pled guilty pursuant to a plea agreement, to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (2012). The district court

sentenced him to 84 months in prison. At the sentencing hearing, Fowler also admitted

violating the terms of supervised release for a previous conviction of felon in possession

of a firearm. The district court revoked his supervised release and sentenced him to 18

months in prison, to be served consecutively to the new sentence. Fowler noted this timely

appeal, and we affirm.

Although Fowler appealed from the revocation of supervised release and 18-month

sentence, he fails to raise any challenge to the revocation or sentence in his opening brief.

Accordingly, Fowler has waived these issues, and we affirm the revocation of supervised

release and sentence. United States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018) (“First, it

is elementary that an issue not presented fairly in an appellant’s opening appellate brief is

thereby waived.”).

Turning to the new sentence, Fowler contends that his sentence is procedurally and

substantively unreasonable because the district court failed to address his mental health

issues and applied an upward departure without an adequate explanation. We review

criminal sentences for abuse of discretion for both procedural and substantive

reasonableness. United States v. Lynn, 912 F.3d 212, 216 (4th Cir. 2019), petition for cert.

filed, __ U.S.L.W. __ (U.S. May 24, 2019) (No. 18-9456). “In determining procedural

reasonableness, we consider, among other things, whether the court properly determined

the Sentencing Guidelines range, considered the 18 U.S.C. § 3553(a) [(2012)] factors, and

3 sufficiently explained the selected sentence.” Id. “In evaluating substantive

reasonableness, we look to the totality of the circumstances to determine whether the

district court abused its discretion in applying the standards set out in Section 3553(a)(2).”

United States v. Bollinger, 798 F.3d 201, 221 (4th Cir. 2015). “While a district court’s

explanation for the sentence must support the degree of the variance, it need not find

extraordinary circumstances to justify a deviation from the Guidelines.” United States v.

Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (citations and internal quotation marks

omitted).

Our review of the record leads us to conclude that the district court did not abuse its

discretion in determining Fowler’s sentence. The district court clearly considered Fowler’s

mental health arguments and provided an adequate explanation for an upward departure.

Fowler’s sentence is procedurally and substantively reasonable.

Accordingly, we affirm Fowler’s sentences. 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