Filed: Feb. 16, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4264 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JON PAUL CLEMENTS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:14-cr-00174-1) Submitted: January 28, 2016 Decided: February 16, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opini
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4264 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JON PAUL CLEMENTS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:14-cr-00174-1) Submitted: January 28, 2016 Decided: February 16, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinio..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JON PAUL CLEMENTS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:14-cr-00174-1)
Submitted: January 28, 2016 Decided: February 16, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas J. Gillooly, Charleston, West Virginia, for Appellant.
R. Booth Goodwin II, United States Attorney, Monica D. Coleman,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jon Paul Clements pled guilty, without a plea agreement, to
four counts of distributing heroin, in violation of 21 U.S.C.
§ 841(a)(1) (2012). The district court sentenced him, as a
career offender, to 168 months’ imprisonment, the bottom of the
advisory Sentencing Guidelines range. Clements timely appealed
his sentence. For the reasons that follow, we affirm.
We review Clements’ sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). Such review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence.
Id. at 51. In determining
procedural reasonableness, we evaluate whether the district
court committed significant procedural error, such as improperly
calculating the advisory Guidelines range, failing to
appropriately consider the 18 U.S.C. § 3553(a) (2012) factors,
or selecting a sentence based on clearly erroneous facts.
Id.
at 49-51; see United States v. Lynn,
592 F.3d 572, 575 (4th Cir.
2010).
If we find no procedural error, then we examine the
substantive reasonableness of the sentence under “the totality
of the circumstances.” Gall, 552 U.S. at 51; United States v.
Howard,
773 F.3d 519, 528 (4th Cir. 2014). The sentence imposed
must be “sufficient, but not greater than necessary,” to satisfy
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the goals of sentencing. See 18 U.S.C. § 3553(a). We presume
on appeal that a within- or below-Guidelines sentence is
substantively reasonable. United States v. Louthian, 756 F.3d
295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014). The
defendant bears the burden to rebut this presumption “by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.”
Id. When reviewing for substantive
reasonableness, this court “can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Yooho Weon,
722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks
omitted).
Clements contends that his sentence is unreasonable because
the court failed to properly weigh the § 3553(a) factors by
taking into account his history and characteristics, and
impermissibly considered dismissed and acquitted conduct when
sentencing him. We disagree.
In fashioning Clements’ sentence, the district court
addressed the 18 U.S.C. § 3553(a) sentencing factors.
Specifically, the court noted that while Clements’ offenses
involved only a small quantity of heroin, this drug, along with
pills, was a serious law enforcement problem in southern West
Virginia, and that Clements’ “sentence need[ed] to send the
message of deterrence to others who are involved in trafficking
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any kind of drugs but, in particular, heroin and pills.” The
court also noted Clements’ “significant” criminal history and
found that a sentence within the career offender Guidelines
range was appropriate and necessary to deter Clements from
engaging in crime and to protect the public from his criminal
activity. All of these considerations by the court speak
directly to several § 3553(a) factors. See 18 U.S.C.
§ 3553(a)(1) (“the nature and circumstances of the offense and
the history and characteristics of the defendant”); 18 U.S.C.
§ 3553(a)(2)(A) (“the need for the sentence . . . to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment”); 18 U.S.C. § 3553(a)(2)(B) (the
need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the
need “to protect the public from further crimes of the
defendant”).
Turning to Clements’ claim that the district erroneously
considered dismissed and acquitted charges, read in context, the
district court mentioned these events in responding to Clements’
request for a below-Guidelines sentence. During his allocution,
Clements apologized, stating that he accepted responsibility for
his actions and was trying to support his family. Remarking
that actions carried more weight than words, the court noted
Clements’ dismissed federal charges from 2010 and 2014, and
observed that, within a month after being released following his
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acquittal on another federal charge in 2014, Clements pled
guilty to a state drug charge, and the next month had resumed
selling drugs. The court found that Clements’ actions
demonstrated that he had learned nothing from his experience
with the criminal justice system and, therefore, a within-
Guidelines sentence was appropriate. Thus, the court considered
the acquitted and dismissed conduct only in the context of
rejecting Clements’ request for a below-Guidelines sentence.
As to Clements’ claim that the district court failed to
take into account his history and characteristics, specifically
his difficult childhood and the lengthy gap between his 2011
career offender predicate offenses and his current crimes,
“district courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.
2011). The record reflects that the district court “considered
the parties’ arguments and ha[d] a reasoned basis for exercising
[its] own legal decisionmaking authority.” United States v.
Avila,
770 F.3d 1100, 1108 (4th Cir. 2014) (second alteration in
original; internal quotation marks omitted).
We conclude that Clements has failed to rebut the
presumption of reasonableness accorded his within-Guidelines
sentence. The court clearly considered the § 3553(a) factors,
offered a reasoned explanation for the sentence it imposed, and
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explained its basis for rejecting Clements’ arguments for a
lesser sentence. Rita v. United States, 551 U.S. 338, 356
(2007). The fact that Clements disagrees with the district
court does not render his sentence unreasonable. Cf. Yooho
Weon, 722 F.3d at 590.
Finally, Clements contends that the district court erred by
denying as moot his challenge to the assessment of two criminal
history points, rather than one, for his 2014 West Virginia
conviction for possession with intent to deliver marijuana. The
criminal history point in question did not affect Clements’
criminal history score because he was sentenced as a career
offender. Therefore, the district court did not err by
concluding that Clements’ challenge was moot.
Accordingly, we affirm Clements’ sentence. 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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