Filed: Jul. 02, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4843 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DALE MCCORMICK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00101-WO-2) Submitted: May 21, 2015 Decided: July 2, 2015 Before DUNCAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the opinio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4843 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DALE MCCORMICK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:14-cr-00101-WO-2) Submitted: May 21, 2015 Decided: July 2, 2015 Before DUNCAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Duncan wrote the opinion..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4843
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH DALE MCCORMICK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00101-WO-2)
Submitted: May 21, 2015 Decided: July 2, 2015
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wynn and Judge Diaz joined.
Anne M. Hayes, Cary, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Greensboro, North Carolina, Graham
T. Green, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Defendant Joseph McCormick appeals his below-guidelines 78-
month sentence for possessing stolen firearms. McCormick argues
that the district court erred in calculating his sentence by (1)
finding that the offense involved a firearm capable of accepting
a large-capacity magazine; and (2) ignoring “numerous mitigating
factors” that warrant a shorter sentence. Appellant’s Br. at
16, 23. Finding the first argument waived and the second
meritless, we affirm the district court’s sentencing order.
I.
On June 19, 2014, McCormick pleaded guilty to one count of
possessing stolen firearms. J.A. 20-26. In September of that
year, a United States Probation Officer prepared a Pre-Sentence
Report (“PSR”), calculating a base offense level of 20--
“[b]ecause the offense involved semiautomatic firearms that are
capable of accepting a large capacity magazine”--and a total
offense level of 28. J.A. 139-40. The PSR ultimately
calculated a guidelines sentencing range of 97-–120 months and
recommended a “middle” sentence. J.A. 153. McCormick objected
“to all facts in the PSR alleging the offense involved a
semiautomatic firearm capable of accepting a large capacity
magazine within the meaning of USSG § 2K2.1(a)(4)(B).” J.A.
121.
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At McCormick’s sentencing hearing, however, his counsel
stated that McCormick was “prepared to withdraw that particular
objection.” J.A. 72. The district court asked McCormick if he
had reviewed the PSR with counsel and whether he generally
agreed with the report, apart from an unrelated outstanding
objection (which McCormick has not presented here). J.A. 73.
McCormick answered affirmatively. Id.
In calculating McCormick’s sentence, the district court
varied downward by two levels--resulting in a total offense
level of 26--“to reflect Mr. McCormick’s cooperation with law
enforcement, his relatively early voluntary plea[,] and other
factors.” J.A. 91. From the resulting 78-97 month sentencing
range, the court imposed a 78 month sentence. J.A. 166.
McCormick timely appealed.
II.
On appeal, McCormick challenges his sentence on two
grounds. He contends that the district court erred, first, in
finding that his offense involved a firearm capable of accepting
a large-capacity magazine, and second, in giving insufficient
weight to mitigating factors that would have warranted a shorter
sentence. We consider each of these arguments in turn.
3
A.
We conclude that McCormick waived his first argument in the
proceedings below. We review the validity of waiver de novo.
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.
2004). A waived issue is not reviewable on appeal, even for
plain error. United States v. Robinson,
744 F.3d 294, 298 (4th
Cir. 2014). What is required to effect valid waiver varies
depending on the right at issue, United States v. Olano,
507
U.S. 725, 733 (1993), but as relevant here, “[a] party who
identifies an issue, and then explicitly withdraws it,” such as
by raising and withdrawing an objection, “has waived the issue.”
Robinson, 744 at 298 (4th Cir. 2014) (quoting United States v.
Rodriguez,
311 F.3d 435, 437 (1st Cir. 2002)). Indeed, “[t]here
can be no clearer intentional relinquishment or abandonment of a
known right than when the court brings the defendant’s prior
objection to his attention,” and the defendant confirms his
intention to withdraw. United States v. Carrasco-Salazar,
494
F.3d 1270, 1273 (10th Cir. 2007) (citation omitted).
McCormick does not contend, nor could he, that he did not
withdraw his objection to the court’s finding that the offense
involved a large-capacity firearm. Instead, he argues that his
withdrawal was neither knowing nor voluntary because the
district court did not engage McCormick in an extensive colloquy
regarding “his willingness to withdraw his objection.” Reply
4
Br. at 4. We reject this contention. Where a defendant raises
and then withdraws a sentencing objection, “it is difficult to
conceive of a more conspicuous example of a knowing and
voluntary abandonment of a legal right.” Rodriguez, 311 F.3d
435 at 437. Here, the district court, after McCormick’s counsel
indicated his intention to withdraw the objection, expressly
asked McCormick whether his counsel had reviewed the presentence
report with him and whether he agreed with the report, except
for his one outstanding objection. We think the district court
was not required to do more.
Because we conclude that McCormick’s withdrawal of his
objection was knowing and voluntary, he has waived any challenge
to the district court’s large-capacity magazine finding.
B.
We also conclude that the district court did not
erroneously ignore mitigating factors that would have warranted
a shorter sentence. When reviewing sentencing decisions,
“‘whether inside, just outside, or significantly outside the
Guidelines range,’ we apply ‘a deferential abuse-of-discretion
standard.’” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009) (quoting Gall v. United States,
552 U.S. 38, 40 (2007)).
Additionally, appellate courts may consider the guidelines range
to be presumptively reasonable. United States v. Evans, 526
5
F.3d 155, 161-62 (4th Cir. 2008) (citation omitted). When, as
here, a defendant challenges the length of his below-guidelines
sentence, we similarly presume the sentence to be substantively
reasonable. United States v. Susi,
674 F.3d 278, 289 (4th Cir.
2012). Noting the significant burden McCormick faces on appeal,
we conduct the following analysis out of an abundance of
caution.
Under 18 U.S.C. § 3553(a), sentences must be “sufficient,
but not greater than necessary, to comply with” substantive
reasonableness, as described by the objectives set out in
§ 3553(a)(2). * While the Sentencing Guidelines “reflect a rough
approximation of sentences that might achieve § 3553(a)’s
objectives,” Rita v. United States, 551 U.S. 338, 350 (2007),
“[t]he reasonableness of a sentence is not measured simply by
whether the sentence falls within the statutory range, but by
whether the sentence was guided [by § 3553(a)],” United States
v. Collins,
773 F.3d 25, 32 (4th Cir. 2014) (citation omitted).
*
Those objectives are “the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2).
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Here, the district court did not abuse its discretion in
its application of the sentencing factors relevant to
§ 3553(a)’s purposes. The court’s analysis of § 3553(a)
proceeded in three steps. First, in light of McCormick’s early
admission of guilt, the district court announced a two-level
downward variance to a 78-97 month range, but identified no
specific sentence within that range. J.A. 80. Second, after a
colloquy with the prosecution, the court noted that that under
§ 3553(a), “the seriousness of the offense is heightened
substantially by the fact that a number of different types of
firearms were traded . . . to a drug dealer, presumably for
further distribution throughout the community.” J.A. 89-90.
Finally, the court reached the factors on which McCormick
relies. The court recognized that, under § 3553(a), factors
such as McCormick’s minor role in the crime, the fact that this
was his first felony, and his drug problem were all relevant
mitigating factors in determining his sentence. J.A. 87-91.
Balancing these mitigating and aggravating § 3553(a) factors,
the court imposed a sentence of 78 months--the lowest within
McCormick’s already reduced range. J.A. 90-91. The court
reasoned that, “[w]hile the need for the sentence imposed to
reflect the seriousness of the offense is high and the need to
deter this type of conduct is high,” the “future dangerousness
7
of the defendant with respect to the need to protect the public
from further crimes of the defendant is low.” Id.
Thus, McCormick’s insistence that the court failed to
consider those mitigating factors is plainly contradicted. In
light of the court’s demonstrated consideration of the
mitigating factors on which McCormick relies, and in light of
the fact that McCormick’s below-guidelines sentence is
presumptively reasonable, we find no abuse of discretion in the
district judge’s imposition of McCormick’s 78-month sentence.
III.
For the foregoing reasons, the sentencing order of the
district court is
AFFIRMED.
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