UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID CARPENTER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-05-101)
Submitted: August 16, 2006 Decided: October 19, 2006
Before WILLIAMS and TRAXLER, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Michael L. Desautels, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Joanne Vella Kirby, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Carpenter appeals the sentence imposed on him for being
a felon in possession of a firearm, in violation of 18 U.S.C.A.
§ 922(g)(1) (West 2000). Although the district court plainly erred
by failing to give Carpenter notice of its intent to vary upwardly
from the sentencing guidelines, we exercise our discretion not to
notice the plain error and affirm Carpenter’s sentence as
reasonable.
I.
On December 28, 2003, Carpenter accompanied his wife Theresa
to the St. Albans, West Virginia home of Theresa’s ex-husband,
Thomas Yoder, to confront Yoder about allegations of child abuse
that Yoder had made against Carpenter. Carpenter remained in the
car while Theresa went inside to discuss the allegations with
Yoder. When Theresa returned to the car and prepared to leave,
Yoder came out of the home and threatened Carpenter. As Theresa
and Carpenter drove away, Carpenter fired three shots from a pistol
out of the front passenger window.
The gunfire was reported to the St. Albans police department,
who responded to the scene. Yoder provided a detailed description
of Carpenter’s car, and a short time later the police located the
car and initiated a traffic stop. Inside the car, the police found
a Jennings .22 caliber semi-automatic pistol underneath the front
2
passenger seat. Carpenter, a convicted felon, later admitted that
he fired the pistol.
Carpenter pleaded guilty to a one count indictment charging
him with being a felon in possession of a firearm, in violation of
18 U.S.C.A. § 922(g)(1). The Presentence Report (PSR) recommended
a base offense level of 14, see U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(6)(A) (2004), and a 4 level enhancement because
Carpenter possessed the firearm in connection with committing
another felony offense, see id. § 2K2.1(b)(5), namely, the West
Virginia felony of wanton endangerment involving a firearm, see W.
Va. Code § 61-7-12 (2005). The PSR also recommended a 3 level
downward adjustment for acceptance of responsibility.
Carpenter objected to the enhancement based on the felony of
wanton endangerment involving a firearm, contending that there was
“not sufficient proof that the firing of the firearm ‘create[d] a
substantial risk of death or serious bodily injury to another.’”
(J.A. at 149 (quoting W. Va. Code § 61-7-12.)(alteration in
original).) Because of Carpenter’s objection, the district court
received evidence at his sentencing hearing to determine if
Carpenter was responsible for wanton endangerment involving a
firearm. Carpenter presented testimony from his wife Theresa, ATF
Agent Shannon Sullivan, and Sergeant T.A. Kemper of the St. Albans
Police Department about where the shots were fired and the spent
shells recovered. After hearing this testimony, the district court
3
agreed that the evidence did not “show the necessary substantial
risk of death or serious bodily injury that would be necessary to
find the felony enhancement.” (J.A. at 99.) The district court
noted, however, that it was not “deprecat[ing] the seriousness” of
Carpenter’s actions and would “deal with it later.” (J.A. at 99.)
The district court then determined that the advisory guideline
range without the felony enhancement and with a decrease for
acceptance of responsibility would be 15-21 months. Carpenter
allocuted by stating, “I know what I did was wrong. And I didn’t
shoot at nobody [sic]. I shot at the ground. I knew it was wrong
and I shouldn’t have possessed the gun, but I did. And I’m sorry.”
(J.A. at 110.)
Thereafter, the district court sentenced him to 30 months’
imprisonment. The district court noted that the sentence was
outside the guideline range, but concluded that a variance sentence
was necessary to take into account factors under 18 U.S.C.A.
§ 3553(a) that were not addressed by the advisory guideline
sentence. Carpenter timely noted an appeal of his sentence.
II.
On appeal, Carpenter raises three issues: (1) the district
court erred by failing to provide notice of its intent to vary
upwardly from the guideline range; (2) the retroactive application
of the remedial scheme of United States v. Booker, 543 U.S. 220
4
(2005), which makes the guidelines advisory and allows for district
court discretion to sentence outside the guideline range,
represents ex post facto decisionmaking that violates due process;
and (3) the sentence imposed was unreasonable. We address each
argument in turn.
A.
Carpenter is correct that the district court erred by failing
to provide notice of its intent to vary upwardly from the guideline
range. Rule 32 of the Federal Rules of Criminal Procedure requires
the district court to give “reasonable notice” to the parties
before it departs from the guideline sentencing range “on a ground
not identified for departure either in the presentence report or in
a party’s prehearing submission.” Fed. R. Crim. P. 32(h).1 In
United States v. Davenport, 445 F.3d 366 (4th Cir. 2006), we held
that Rule 32(h)’s requirement of “notice of an intent to depart or
vary from the guidelines remains a critical part of sentencing
1
Rule 32(h) states,
“Before the court may depart from the applicable sentencing range
on a ground not identified for departure either in the presentence
report or in a party’s prehearing submission, the court must give
the parties reasonable notice that it is contemplating such a
departure. The notice must specify any ground on which the court
is contemplating a departure.” Fed. R. Crim P. 32(h).
5
post-Booker.” Id. at 371. The district court therefore erred in
failing to provide Carpenter notice.2
Carpenter did not object to the lack of notice, but he
contends that his failure “to lodge an objection is due to the lack
of opportunity to make such an objection.” (Appellant’s Br. at 8.)
Nevertheless, we have stated that in order to preserve an objection
for harmless error review a defendant must object to the lack of
notice under Rule 32(h) either at the hearing –- after the court
announces its sentence –- or in a post-hearing motion. United
States v. Spring, 305 F.3d 276, 281 (4th Cir. 2002). Because
Carpenter did not object at either time, we review for plain error
only. Id.
In Spring, we concluded that failure to provide notice under
Rule 32(h) is plain error that affects a defendant’s substantial
rights. Id. at 282 (“The error was plain because the decision to
depart upward without comment from the parties violated the clear
direction of [the Rule]. And, the error resulted in an increased
sentence and therefore affected substantial rights.”). Although in
Spring we exercised our discretion to notice and correct the error,
we did so because the lack of notice “impaired [the defendant’s]
opportunity to be heard on an important matter affecting his
2
Because United States v. Davenport, 445 F.3d 366 (4th Cir.
2006) had not been decided at the time of Carpenter’s sentencing,
we do not fault the district court for failing to comply with that
decision.
6
sentence and because his arguments against the upward departure
have sufficient weight that the district court, in the exercise of
its broad discretion, might accept them when [the defendant] has a
chance to present them.” Id. at 283 (emphases added).
In this case, although Carpenter contends that he was harmed
by the lack of notice because he was not given an opportunity to be
heard on his variance sentence, he does not present any argument
that he would have made against the upward variance. Because
Carpenter has not shown us any argument that he would have made
against the upward variance, much less an argument of sufficient
weight that the district court would have found persuasive, we
exercise our discretion not to notice the district court’s plain
error of failing to provide Carpenter notice under Rule 32(h) of
its intent to impose a variance sentence.
B.
Carpenter also raises an ex post facto challenge to the
district court’s retroactive application of Booker’s remedial
scheme because the remedial scheme, by treating the sentencing
guidelines as advisory only, increased his potential punishment.
The Ex Post Facto Clause states, “No . . . ex post facto Law shall
be passed.” U.S. Const. art. I, § 9, cl. 3; see also id., § 10,
cl. 1 (prohibiting states from enacting ex post facto laws).
Recognizing that the Ex Post Facto Clause is a limitation upon the
7
power of the legislature, not the judiciary, Carpenter relies on
the Supreme Court’s decision in Rogers v. Tennessee, 532 U.S. 451
(2001), in which the Court observed that “limitations on ex post
facto judicial decisionmaking are inherent in the notion of due
process.” Id. at 456.
In Davenport, we rejected the argument that retroactive
application of Booker’s remedial opinion violates the Ex Post Facto
Clause. Davenport, 445 F.3d at 369-70. We noted that at the time
Davenport committed the crime he was on notice of the maximum
statutory penalty, and because the sentence imposed was less than
that statutory maximum, there was no violation of the Ex Post Facto
Clause. Id.
As we noted in Davenport, federal courts have universally
rejected ex post facto challenges to the retroactive application of
Booker, id., including ex post facto challenges based on the Due
Process Clause. See United States v. Barton, 455 F.3d 649, 654
(6th Cir. 2006); United States v. Pennavaria, 445 F.3d 720, 723-24
(3d Cir. 2006); United States v. Austin, 432 F.3d 598, 599-600 (5th
Cir. 2005); United States v. Jaminson, 416 F.3d 538, 539 (7th Cir.
2005). We, too, conclude that the district court’s application of
Booker’s remedial opinion did not violate due process through ex
post facto judicial decisionmaking.
8
C.
Finally, Carpenter contends that the district court imposed an
unreasonable sentence. In considering whether the district court
imposed a reasonable sentence, “we will review the district court’s
legal conclusions de novo and its factual findings for clear
error.” United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006).
After determining that the 4-level enhancement did not apply,
the district court considered the advisory guideline range and
considered the relevant statutory sentencing factors under 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). The district court
then concluded that the guideline range failed to account for the
seriousness of the offense of firing a firearm several times in a
residential neighborhood or the history and characteristics of
Carpenter who, as the district court noted, had a number of prior
arrests for violent behavior and problems with alcohol and anger
management. See Davenport, 445 F.3d at 371-72 (noting that the
district court identified the relevant § 3553(a) factors). We
conclude that “[a]ll of these considerations support the decision
of the district court to impose a sentence above the advisory
guideline range.” Id. at 372 (upholding a variance sentence based
on § 3553(a) factors not accounted for by the advisory sentencing
guidelines).
9
We also conclude that the length of the sentence was
reasonable. The advisory guideline range was a term of
imprisonment for 15-21 months. The district court sentenced
Carpenter to 30 months. The district court reasonably concluded
that a variance sentence of an additional 9 months’ imprisonment --
less than one and a half times the top of the advisory guideline
range -- was necessary to account for the fact that Carpenter not
only possessed a gun but fired it in a residential neighborhood.
See United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006)
(“The farther the court diverges from the advisory guideline range,
the more compelling the reasons for the divergence must be.”).
III.
In sum, the district court plainly erred by failing to provide
Carpenter notice of its intent to impose a variance sentence.
Nevertheless, in our discretion we will not recognize the error
because Carpenter has not provided any argument that he would have
made against the variance sentence. We reject Carpenter’s argument
that the district court’s application of Booker’s advisory
sentencing regime violates due process through ex post facto
judicial decisionmaking or that the district court imposed an
unreasonable sentence. We therefore affirm the sentence imposed.
We dispense with oral argument because the facts and legal
10
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
11