Filed: Mar. 05, 2018
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4353 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN JAROD FOUST, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00038-FDW-DSC-1) Submitted: February 27, 2018 Decided: March 5, 2018 Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven T. Meier, M
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-4353 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN JAROD FOUST, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00038-FDW-DSC-1) Submitted: February 27, 2018 Decided: March 5, 2018 Before DUNCAN, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven T. Meier, ME..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4353
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN JAROD FOUST,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, Chief District Judge. (3:16-cr-00038-FDW-DSC-1)
Submitted: February 27, 2018 Decided: March 5, 2018
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Jarod Foust appeals his sentence following his guilty plea to sexual
exploitation of a minor, in violation of 18 U.S.C. § 2251(a), (e) (2012). The district court
sentenced Foust within his Sentencing Guidelines range to 360 months’ imprisonment.
Foust’s attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967),
concluding there are no meritorious grounds for appeal, but questioning whether the district
court erred in overruling Foust’s objections to the presentence report and applying a
sentencing enhancement pursuant to an unconstitutionally vague provision of the
Sentencing Guidelines. Although notified of his right to file a pro se brief, Foust has not
done so.
When reviewing a district court’s application of the Guidelines, we review questions
of fact for clear error and questions of law de novo. United States v. Dowell,
771 F.3d 162,
170 (4th Cir. 2014). “A Guidelines error is considered harmless if . . . (1) the district court
would have reached the same result even if it had decided the [G]uidelines issue the other
way, and (2) the sentence would be reasonable even if the [G]uidelines issue had been
decided in the defendant’s favor.” United States v. Gomez-Jimenez,
750 F.3d 370, 382 (4th
Cir. 2014) (internal quotation marks omitted).
Foust questions on appeal whether the district court’s imposition of enhancements
pursuant to U.S. Sentencing Guidelines Manual §§ 2G2.1(b)(2)(A), 3A1.1(b)(1) (2016)
constituted impermissible double counting. “Double counting occurs when a provision of
the Guidelines is applied to increase punishment on the basis of a consideration that has
been accounted for by application of another Guideline provision or by application of a
2
statute.”
Dowell, 771 F.3d at 170 (internal quotation marks omitted). There is a
presumption that double counting is proper where the Guidelines do not expressly prohibit
it.
Id. We conclude, for the reasons stated by the district court at the sentencing hearing,
that imposing the enhancements did not amount to double counting, and, therefore, that the
district court did not err in overruling Foust’s objections to those enhancements.
Foust also questions whether the district court erred in imposing a pattern of activity
enhancement pursuant to USSG § 4B1.5(b)(1). We conclude that the factual basis and
testimony at sentencing established that Foust engaged in sexual contact with a minor on
more than one occasion and, therefore, that the enhancement was appropriate.
Furthermore, in overruling Foust’s objection to the enhancement, the district court
explained that Foust’s Guidelines ranges, with and without the enhancement, overlapped
at a sentence of 360 months and that it would have reached the same sentence regardless
of whether it applied the enhancement. We therefore conclude that, even if the district
court had erred in imposing this enhancement, that error would be harmless. Finally,
Foust’s argument that USSG § 4B1.5(b)(1) is unconstitutionally vague and that its
imposition violated his due process rights is meritless because “the advisory sentencing
Guidelines are not subject to a vagueness challenge under the Due Process Clause.”
Beckles v. United States,
137 S. Ct. 886, 895 (2017).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. Accordingly, we affirm the district court’s
judgment. This court requires that counsel inform Foust, in writing, of the right to petition
the Supreme Court of the United States for further review. If Foust requests that a petition
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be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Foust. 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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