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United States v. Antonio Tucker, 13-4954 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 13-4954 Visitors: 16
Filed: Jun. 05, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4954 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO SHAKUR TUCKER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:13-cr-00110-H-1) Submitted: May 30, 2014 Decided: June 5, 2014 Before WILKINSON, KING, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Raymond C. Tarlton,
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4954


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO SHAKUR TUCKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:13-cr-00110-H-1)


Submitted:   May 30, 2014                     Decided:   June 5, 2014


Before WILKINSON, KING, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North Carolina,
for Appellant.     Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Antonio Shakur Tucker pleaded guilty to one count of

possession of a firearm by a convicted                  felon,   in     violation         of

18 U.S.C. §§ 922(g)(1), 924(e) (2012) (Count One), and one count

of possession of a stolen firearm, in violation of 18 U.S.C.

§§ 922(j),     924(a)(2)         (Count       Two).    Because   Tucker         had    three

prior      violent    felony       convictions,         there    was        a    statutory

mandatory minimum fifteen year sentence for Count One.                                See 18

U.S.C. § 924(e)(1).              The district court sentenced Tucker to a

within-Guidelines sentence of 210 months for Count One and 120

months for Count Two, to run concurrently.                       On appeal, Tucker

contends     that     the    court       did    not   sufficiently      consider         his

argument for a sentence at the low end of the Guidelines.                                 He

also contends that the statutory mandatory minimum sentence was

not     appropriate     because          he     did   not    admit     to       the    prior

convictions nor were the convictions proven beyond a reasonable

doubt.     We affirm.

             We review a sentence for reasonableness, applying an

abuse of discretion standard.                   Gall v. United States, 
552 U.S. 38
,   46    (2007).         We   first    review      for   significant         procedural

errors, and if the sentence is free from such error, we then

review for substantive reasonableness.                      
Id. at 51.
         Procedural

errors include improperly calculating the Sentencing Guidelines

range, treating the Guidelines range as mandatory, failing to

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consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to

adequately explain the selected sentence.                    
Id. To adequately
explain      the   sentence,     the     district      court       must     make    an

“individualized assessment” by applying the relevant § 3553(a)

factors to the case’s specific circumstances.                  United States v.

Carter, 
564 F.3d 325
, 328 (4th Cir. 2009).                    The individualized

assessment need not be elaborate or lengthy, but it must be

adequate to allow meaningful appellate review.                 
Id. at 330.
             When explaining the chosen sentence, the “sentencing

judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.”

Rita    v.   United   States,    
551 U.S. 338
,    356    (2007).       While    a

district court must consider the statutory factors and explain

its    sentence,   it   need    not    explicitly     reference     §     3553(a)   or

discuss every factor on the record.              United States v. Johnson,

445 F.3d 339
, 345 (4th Cir. 2006).               This is particularly true

when the sentence is within the Guidelines.              
Id. After reviewing
the sentencing transcript, we conclude

that the district court adequately explained its reasoning for

the chosen sentence.           In response to counsel’s argument for a

sentence at the low end of the Guidelines, the court took note

of the need for deterrence, the number of times Tucker had been



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incarcerated and Tucker’s criminal history, which it described

as “exceedingly long and exceedingly criminal.”

            We also find no error with the statutory mandatory

minimum sentence under § 924(e)(1).                 Tucker was given notice

that he could be sentenced under § 924(e) based on three prior

violent felony convictions and did not challenge the basis for

that finding.       See Almendarez-Torres v. United States, 
523 U.S. 224
, 228-35 (1998).         The convictions did not need to be admitted

by   him   or    proven     beyond   a   reasonable      doubt.         See    United

States v.       McDowell,     
745 F.3d 115
,    124       (4th     Cir.    2014)

(Almendarez-Torres “remains good law”).

            Accordingly, we affirm the convictions and sentence.

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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Source:  CourtListener

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