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United States v. Steve Grogans, 11-4809 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 11-4809 Visitors: 31
Filed: Aug. 24, 2012
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4809 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVE EDWARD GROGANS, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:11-cr-00021-SGW-1) Submitted: August 20, 2012 Decided: August 24, 2012 Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Hele
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4809


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEVE EDWARD GROGANS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:11-cr-00021-SGW-1)


Submitted:   August 20, 2012                 Decided:    August 24, 2012


Before KING and    SHEDD,   Circuit   Judges,   and     HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Helen E. Phillips, ALLEN, KOPET & ASSOCIATES, PLLC, Bristol,
Virginia, for Appellant.     Timothy J. Heaphy, United States
Attorney, Kartic Padmanabhan, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Steve         Edward   Grogans           appeals      the    district     court’s

sentence of 300 months’ imprisonment imposed after his plea of

guilty to possession of a firearm by a convicted felon.                                       On

appeal, Grogans contends that his sentence, which was ninety

months above the top of the applicable Guidelines range, was

unreasonable and that the district court erred in sentencing him

in the absence of objections to the presentence report.                                       We

affirm.

             This court “review[s] a sentence for reasonableness,

applying an abuse of discretion standard.”                                United States v.

Susi, 
674 F.3d 278
, 282 (4th Cir. 2012).                                 When the district

court   imposes        a    sentence       outside      the     Guidelines’       range,    “we

consider whether the sentencing court acted reasonably both with

respect    to    its       decision      to    impose       such   a     sentence     and   with

respect    to    the       extent   of     the    divergence        from    the     sentencing

range.”      United States v. Hernandez-Villanueva, 
473 F.3d 118
,

123   (4th      Cir.       2007)      We      will     affirm      if    “the   [18    U.S.C.]

§ 3553(a) [2006] factors, on the whole, justified the sentence”

imposed.     United States v. Diosdado-Star, 
630 F.3d 359
, 367 (4th

Cir. 2011) (internal quotation marks omitted), cert. denied, 
131 S. Ct. 2946
(2011).

             Grogans         asserts       that       the   upward       variance     was    not

warranted because the Guidelines and the Armed Career Criminal

                                                  2
Act took into account his criminal history.               We have reviewed

the record and conclude that the district court considered the

parties’ arguments and fully explained its decision pursuant to

the    § 3553(a)    factors,     particularly   Grogans’     extraordinary

criminal history over a lengthy period of time, the likelihood

of recidivism, and the need to protect the public from Grogans.

Grogans has failed to demonstrate an abuse of discretion.

            Grogans also argues that the district court erred by

sentencing him as an armed career criminal in the absence of

objections to the source of the documents used to establish his

predicate convictions.         Because trial counsel did not object to

the presentence report, we review for plain error.                See United

States v. Wallace, 
515 F.3d 327
, 332 (4th Cir. 2008).                Grogans

must establish that an error occurred, that the error was plain,

and that the error affected his substantial rights.               See United

States v. Olano, 
507 U.S. 725
, 732 (1993).                Grogans fails to

identify any objection trial counsel should have made to the

presentence report.      We thus conclude that Grogans has failed to

demonstrate plain error pursuant to Olano.

            Accordingly, we affirm the district court’s judgment.

We    dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                    AFFIRMED

                                      3

Source:  CourtListener

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