Filed: Jul. 10, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4897 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MATTHEW JAMES DURY, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00016-LHT-1) Submitted: June 11, 2009 Decided: July 10, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; vacated and remanded in
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4897 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MATTHEW JAMES DURY, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00016-LHT-1) Submitted: June 11, 2009 Decided: July 10, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; vacated and remanded in p..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4897
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MATTHEW JAMES DURY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00016-LHT-1)
Submitted: June 11, 2009 Decided: July 10, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Carol Ann Bauer, Morganton, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew James Dury pled guilty to receipt of child
pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1)
(2006). In sentencing Dury, the district court determined that
he had engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor and consequently enhanced
Dury’s offense level five levels pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2G2.2(b)(5) (2007). The district
court then sentenced Dury to 204 months’ imprisonment, which
fell within his advisory guidelines range. On appeal, counsel
for Dury has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), suggesting that the district court erred in
applying the USSG § 2G2.2(b)(5) enhancement. ∗
This court reviews sentencing enhancements under a
mixed standard of review: findings of fact are subject to a
clearly erroneous standard and legal conclusions, including
interpretation of the sentencing guidelines, are reviewed de
novo. United States v. Moreland, 437 F.3d 424, 433 (4th Cir.
2006). The Government need only establish the facts supporting
a sentencing enhancement under USSG § 2G2.2(b)(5) by a
∗
Dury was informed of his right to file a pro se
supplemental brief. He has not done so.
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preponderance of the evidence. United States v. Kiulin,
360 F.3d 456, 460 (4th Cir. 2004).
Section 2G2.2(b)(5) provides for a five level
enhancement if a defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor. USSG
§ 2G2.2(b)(5). A “pattern of activity involving the sexual
abuse or exploitation of a minor” is defined as “any combination
of two or more separate instances of the sexual abuse or sexual
exploitation of a minor by the defendant, whether or not the
abuse or exploitation (A) occurred during the course of the
offense; (B) involved the same minor; or (C) resulted in a
conviction for such conduct.” USSG § 2G2.2(b)(5) comment.
(n.1).
Dury first suggests that the district court erred in
enhancing his sentence based on a statement he gave to law
enforcement because his statement lacks reliability. We have
reviewed the record and determine that Dury’s statement was
sufficiently reliable that the district court did not err in
relying on it in imposing the § 2G2.2(b)(5) enhancement.
Dury next suggests that the district court erred in
enhancing his sentence pursuant to USSG § 2G2.2(b)(5) based on a
state conviction for simple assault. The charging document in
that case stated that Dury held a thirteen-year-old child on a
couch and attempted to kiss her. Accordingly, we find no error
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in the application of the enhancement. See Shepard v. United
States, 544 U.S. 13, 26 (2005).
In accordance with Anders, we have thoroughly reviewed
the record and find no infirmity that calls Dury’s conviction
into question. We conclude, however, that Dury’s sentence must
be vacated as the district court’s explanation of its exercise
of discretionary sentencing authority does not pass muster under
United States v. Carter, 564 F.3d 325 (4th Cir. 2009).
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, ___,
128 S. Ct. 586, 597 (2007);
United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008). In
reviewing a sentence, the appellate court must first ensure that
the district court committed no significant procedural error,
such as failing to adequately explain the chosen sentence.
Gall
128 S. Ct. at 597. If there are no procedural errors, then the
appellate court considers the substantive reasonableness of the
sentence.
Id.
“When rendering a sentence, the district court must
make an individualized assessment based on the facts presented.”
Carter, 564 F.3d at 328 (quoting Gall, 128 S. Ct. at 597)
(internal quotations omitted) (emphasis in the original)).
Accordingly, a sentencing court must apply the relevant
§ 3553(a) factors to the particular facts presented and must
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“state in open court” the particular reasons that support its
chosen sentence. Id. Stating in open court the particular
reasons for a chosen sentence requires the district court to set
forth enough to satisfy this court that the district court has a
reasoned basis for its decision and has considered the parties’
arguments.
Id.
Here, as in Carter, the district court did not justify
Dury’s sentence with an adequate individualized rationale.
Carter, 564 F.3d at 328-29. At sentencing, defense counsel
requested the district court to sentence Dury “at the lowest
possible level.” In support of her request, defense counsel
referenced Dury’s difficult upbringing and life. In imposing a
sentence near the middle of Dury’s advisory guidelines range,
the district court stated only “pursuant to the Sentencing
Reform Act of 1984 and U.S. v. Booker, it is the judgment of the
Court, having considered the factors noted in 18 U.S.C.
§ 3553(a) that the defendant, Matthew James Dury, is hereby
committed to the custody of the U.S. Bureau of Prisons, to be
imprisoned for a term of 204 months.” The district court failed
to state how or which particular § 3553(a) factors applied to
Dury, and the court’s statement that it had considered the
§ 3553(a) factors could have applied to any sentence, regardless
of the offense or defendant.
Id. at 329. “Regardless of
whether the district court imposes an above, below, or
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within-Guidelines sentence, it must place on the record an
‘individualized assessment’ based on the particular facts of the
case before it.” Id. at 330. The record here simply fails to
reveal why the district court deemed the sentence it imposed
appropriate. Accordingly, while we affirm Dury’s conviction, we
vacate Dury’s sentence and remand for resentencing in light of
Carter.
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 IN PART;
VACATED AND REMANDED IN PART
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