Filed: Mar. 22, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4749 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN O’NEAL HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:05-cr-00012-BO-1) Submitted: January 31, 2012 Decided: March 22, 2012 Before MOTZ, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4749 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN O’NEAL HARRIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:05-cr-00012-BO-1) Submitted: January 31, 2012 Decided: March 22, 2012 Before MOTZ, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4749
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN O’NEAL HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:05-cr-00012-BO-1)
Submitted: January 31, 2012 Decided: March 22, 2012
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian O’Neal Harris appeals his twenty-four-month
sentence for violation of his term of supervised release.
Harris argues that his revocation sentence is plainly
unreasonable because the district court failed to explain the
sentence it chose. For the reasons that follow, we affirm.
Following his guilty plea to possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) & 924 (2006), Harris was sentenced in 2006 to
forty-six months’ imprisonment followed by a thirty-six-month
term of supervised release. Harris began his term of
supervision on September 21, 2009.
On March 10, 2011, a probation officer petitioned the
district court for revocation of Harris’ term of supervised
release. The probation officer explained that Harris had, in
violation of the terms of his supervised release, engaged in
criminal conduct and possessed a controlled substance.
Specifically, Harris had been arrested in North Carolina on
charges of Possession With Intent to Sell and Deliver Marijuana,
Possession of Stolen Goods/Property, and Driving While Impaired.
Harris pled no contest to the conduct charged in the
petition for revocation of supervised release because the state
charges were still pending. He presented no evidence in
response to the evidence introduced by the Government regarding
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the violations. The court found that the violations had been
established and that Harris’ policy statement range under the
Sentencing Guidelines was twenty-four months.
Afterwards, defense counsel submitted a letter from a
McDonald’s restaurant stating that Harris was a “critical
worker,” and noted that Harris worked for McDonald’s “pretty
regularly” after being placed on supervised release. Harris
asked the court for mercy. The court questioned the parties
about Harris’ income, the status of the state charges, the
circumstances under which drugs were found in Harris’ vehicle,
and his prior murder conviction. Without further elaboration,
the court then imposed a twenty-four-month sentence, the
statutory maximum penalty and the advisory policy statement
term. 1
Because Harris did not request a sentence outside the
policy statement range, we review his challenge to the adequacy
1
Harris’ Grade A supervised release violation and placement
in Criminal History Category V yielded an advisory policy
statement range of thirty to thirty-seven months under U.S.
Sentencing Guidelines Manual § 7B1.4(a)(1), p.s. (2005), but
because the statutory maximum sentence for Harris’ violation was
twenty-four months, see 18 U.S.C. § 3583(e)(3) (2006), his
advisory policy statement term became twenty-four months. USSG
§ 7B1.4(b)(1) (stating where statutory maximum lower than bottom
of policy statement range, statutory maximum becomes policy
statement range).
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of the explanation for his sentence for plain error. 2 Lynn, 592
F.3d at 580 (finding error not preserved where defendant failed
to seek sentence outside Guidelines range). “To establish plain
error, [Harris] must show that an error occurred, that the error
was plain, and that the error affected his substantial rights.”
United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007).
Even if Harris satisfies these requirements, “correction of the
error remains within our discretion, which we should not
exercise . . . unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.”
Id. (alteration in original) (internal quotation
marks and citation omitted).
In the sentencing context, an error affects
substantial rights if the defendant can show that the sentence
imposed “was longer than that to which he would otherwise be
subject.” United States v. Washington, 404 F.3d 834, 849 (4th
Cir. 2005) (internal quotation marks and citation omitted); see
2
Harris contends that he preserved the issue of the
adequacy of the district court’s explanation for his sentence
because he asked the court for mercy at the revocation hearing
and counsel noted his positive work record. A defendant
preserves a claim of sentencing error when he “draw[s] arguments
from [18 U.S.C.] § 3553 [2006] for a sentence different than the
one ultimately imposed.” United States v. Lynn, 592 F.3d 572,
578-79 (4th Cir. 2010). We find Harris’ bald request for mercy
and counsel’s remarks were not sufficient to preserve for
appellate review the adequacy of the district court’s
explanation of the sentence.
4
also United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)
(“In the sentencing context, an error was prejudicial only if
there is a reasonable probability that the defendant would have
received a lighter sentence but for the error.”). We conclude
Harris cannot meet this rigorous standard on this record.
Assuming arguendo that the district court’s
explanation was inadequate, Harris fails to argue, and nothing
in the record indicates, that the court would have imposed a
lighter sentence had it provided a more thorough explanation.
Accordingly, we conclude Harris’ challenge to his revocation
sentence cannot withstand plain error review, as he cannot
establish that any error by the district court affected his
substantial rights. We therefore 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
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