explaining that, to satisfy the third element of plain error review “in the sentencing context, the defendant must show that he would have received a lower sentence had the error not occurred”
How later courts described this case
- explaining that, to satisfy the third element of plain error review “in the sentencing context, the defendant must show that he would have received a lower sentence had the error not occurred”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4935
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMIEN LAMONTE BROWN, a/k/a Dame,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Terrence W. Boyle, Chief District Judge. (4:18-cr-00013-BO-1)
Submitted: September 17, 2019 Decided: September 26, 2019
Before MOTZ and QUATTLEBAUM, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Banumathi Rangarajan, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damien Lamonte Brown was convicted after a jury trial of conspiracy to distribute
and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), 846, 851 (count 1), possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012) (count 2), and
possession with intent to distribute 100 grams or more of heroin and aiding and abetting,
in violation of 18 U.S.C. § 2 (2012) and 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 851 (count 3).
The district court calculated Brown’s advisory sentences under the U.S. Sentencing
Guidelines Manual (2018) at life imprisonment on counts 1 and 3 and 120 months’
imprisonment on count 2. After granting Brown’s request for a downward variance, the
district court sentenced him to concurrent terms of 360 months’ imprisonment on counts 1
and 3 and a concurrent term of 120 months’ imprisonment on count 2. On appeal, Brown
challenges his 360-month sentences, arguing that they are procedurally unreasonable
because the district court failed to provide an adequate explanation for its sentencing
decision. We affirm.
We review a district court’s sentence “for reasonableness ‘under a deferential
abuse-of-discretion standard,’” whether the sentence “is ‘inside, just outside, or
significantly outside the Guidelines range.’” United States v. McCoy, 804 F.3d 349, 351
(4th Cir. 2015) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). This review entails
consideration of the procedural reasonableness of the sentence. Gall, 552 U.S. at 51. In
assessing procedural reasonableness, we consider whether the district court adequately
explained the chosen sentence, including any deviation from the Guidelines. Id. When
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imposing a sentence, the district court “must place on the record an ‘individualized
assessment’ based on the particular facts of the case before it” that “provide[s] a rationale
tailored to the particular case at hand and [is] adequate to permit ‘meaningful appellate
review.’” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall,
552 U.S. at 50).
Review of the adequacy of the district court’s explanation of Brown’s 360-month
sentences is for plain error because he did not object below “[b]y drawing arguments from
[18 U.S.C.] § 3553 [(2012)] for a sentence different than the one ultimately imposed.”
United States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010). Under the plain error
standard, this court “will correct an unpreserved error if (1) an error was made; (2) the error
is plain; (3) the error affects substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v. Harris,
890 F.3d 480, 491 (4th Cir. 2018) (internal quotation marks omitted).
Assuming without deciding that the district court plainly erred in explaining its
decision to impose the 360-month sentences, Brown has not established that any error
affected his substantial rights by influencing the outcome of the sentencing hearing.
Specifically, Brown has not argued that he would have received a lower sentence had the
district court not committed the error about which he complains and, thus, he has failed to
satisfy the third prong of plain error review. See United States v. Knight, 606 F.3d 171,
178 (4th Cir. 2010) (explaining that, to satisfy the third element of plain error review “in
the sentencing context, the defendant must show that he would have received a lower
sentence had the error not occurred”).
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Accordingly, we affirm the criminal judgment. 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
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