United States v. Joseph Patterson

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 12, 2018
• Docket: 17-4619
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4619

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH HAROLD PATTERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:16-cr-00067-MOC-DLH-1)

Submitted: May 31, 2018 Decided: June 12, 2018

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian D. Gulden, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:

Joseph Harold Patterson appeals his conviction and 210-month sentence imposed

following his guilty plea to transporting minors with intent to engage in sexual activity, in

violation of 18 U.S.C. § 2423(a) (2012). Counsel for Patterson has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues

for review, but questioning whether the district court properly applied a 5-level

sentencing enhancement for engaging in a pattern of activity involving prohibited sexual

conduct. See U.S. Sentencing Guidelines Manual § 4B1.5(b) (2016). Patterson was

notified of his right to file a pro se supplemental brief but has not done so. For the

reasons that follow, we affirm.

We review a defendant’s sentence “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). In determining whether a

sentence is procedurally reasonable, we consider, among other things, whether the district

court properly calculated the defendant’s advisory Sentencing Guidelines range. Id. at

51. “When evaluating a challenge to a sentencing enhancement, we review the district

court’s factual findings only for clear error, and if the issue turns primarily on the legal

interpretation of the guidelines, our review is de novo.” United States v. Carter, 601 F.3d

252, 254 (4th Cir. 2010) (brackets and internal quotation marks omitted).

Under USSG § 4B1.5(b), a 5-level sentencing enhancement shall apply if the

defendant, among other things, “engaged in a pattern of activity involving prohibited

sexual conduct.” A defendant engages in such pattern “if on at least two separate

occasions, the defendant engaged in prohibited sexual conduct with a minor.” USSG

2 § 4B1.5 cmt. n.4(B)(i). Patterson argues that “two separate occasions” could refer to two

occasions separate from one another, or to two occasions separate from the instant

offense. Patterson further contends that, given this ambiguity, the rule of lenity requires

the latter construction to apply because it is more favorable to defendants. Even

assuming, without deciding, that Patterson’s interpretation of USSG § 4B1.5 is correct,

the record is flush with uncharged incidents—to which Patterson admitted below—

involving prohibited sexual conduct with minors. Because Patterson previously

committed at least two pattern predicates separate from the instant charge, we conclude

that the district court properly applied the 5-level enhancement under USSG § 4B1.5(b).

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

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

and sentence. This court requires that counsel inform Patterson, in writing, of the right to

petition the Supreme Court of the United States for further review. If Patterson 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 Patterson.

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