UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4290
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JESSE CLEO BAZEMORE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00221-BO-1)
Submitted: August 10, 2010 Decided: September 9, 2010
Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Cleo Bazemore appeals his sentence of 108 months
in prison and three years of supervised release after pleading
guilty to possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). On appeal, he
contends that the district court committed procedural error by
failing to adequately explain its decision to reject his request
for a sentence at the bottom of his guideline range and to
sentence him at the top of his guideline range. We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In sentencing, the district court should first
calculate the advisory guideline range and give the parties an
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opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the
relevant § 3553(a) factors to determine whether they support the
sentence requested by either party. Id. When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case before the court. Carter, 564 F.3d at 328, 330. “Such
individualized treatment is necessary to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.” Id. at 328
(internal quotation marks and citations omitted).
In 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,”
but when the district court decides simply to apply the
guidelines, “doing so will not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356 (2007).
When a party “presents nonfrivolous reasons for imposing a
different sentence, however, the judge will normally go further
and explain why he has rejected those arguments.” Id. at 357.
While a district court must consider the statutory factors and
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explain its sentence, it need not explicitly reference § 3553(a)
or discuss every factor on the record, particularly when the
sentence is within a properly calculated guideline range.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Procedural sentencing errors raised for the first time
on appeal are reviewed for plain error. United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 2010). Preserved claims are
reviewed for abuse of discretion, and if we find abuse, reversal
is required unless we conclude that the error was harmless. Id.
at 576. A party preserves a claim of error “by informing the
court—when the court ruling or order is made or sought—of the
action the party wishes the court to take, or the party’s
objection to the court’s action and the grounds for that
objection.” Fed. R. Crim. P. 51(b).
To preserve a claim that the district court provided
inadequate explanation for a sentence, a party is not required
to lodge an explicit objection after the court’s explanation.
Rather, “[b]y drawing arguments from § 3553 for a sentence
different than the one ultimately imposed, an aggrieved party
sufficiently alerts the district court of its responsibility to
render an individualized explanation addressing those arguments,
and thus preserves its claim.” Lynn, 592 F.3d at 578. However,
“lodging one specific claim of procedural sentencing error
before the district court, e.g., relying on certain § 3553
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factors, does not preserve for appeal a different claim of
procedural sentencing error, e.g., relying on different § 3553
factors.” Id. at 579 n.4.
If a defendant establishes that the district court
committed procedural error by failing to adequately explain its
decision not to impose the sentence requested by the defendant,
and the claim is preserved, the Government may avoid reversal
only if it demonstrates the error did not have a substantial and
injurious effect or influence on the result, and we can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed. United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) (quotation marks and citations omitted).
Bazemore contends that his sentence must be vacated
because the district court did not mention any of the § 3553(a)
factors or explain the sentence it imposed, and there is nothing
in the record to show that the court considered his arguments or
made an individualized assessment. The Government contends that
even if the district court failed to adequately explain the
sentence it imposed in light of the § 3553(a) factors, any error
was harmless because the record establishes the district court’s
individualized consideration of factors relevant to Bazemore’s
sentence, the court actively listened to and considered the
arguments of Bazemore and his attorney, and it is unrealistic to
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conclude that the court’s explicit mention of the mitigating
factors addressed by Bazemore’s attorney would have resulted in
a shorter sentence.
Our review of the record convinces us the Government
is correct, and that any error in this case was harmless. The
district court engaged both Bazemore and his attorney in an
extended discussion of factors relevant to his sentence,
including the nature and circumstances of Bazemore’s offense and
his history and characteristics. The district court responded
to counsel’s arguments with questions and comments making it
clear that the court understood but ultimately rejected the
arguments. Thus, the record reflects that the district court
made an individualized assessment based on the facts presented.
Not only did Bazemore possess a firearm on the night
of the instant offense, he used the firearm to inflict serious
injuries on his victim. Moreover, the firearm was a stolen
semi-automatic handgun, and Bazemore admitted he had a history
of owning firearms including stolen firearms. When counsel
argued for a lower sentence based on Bazemore’s young age and
education at the time of his arrest, letters from his family and
employer, the district court reviewed his record of drug
dealing. Bazemore had four prior felony convictions for
possession with intent to sell cocaine for which he received
extremely lenient treatment in state court. Counsel argued that
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Bazemore had “learned the last lesson that he needed to learn”
and had “consistently improved,” because he had not had a
conviction since 2004 and his probation sentence for that
conviction terminated without him being cited for a violation.
The court responded by noting that Bazemore was still carrying a
gun.
Finally, the Government pointed out that Bazemore
“pistol-whipped the victim” and argued that if it were not for
the changes in North Carolina sentencing law, he would be an
armed career criminal facing between 180 and 210 months in
prison. Bazemore did not dispute the claim, and immediately
after this discussion, the district court imposed a sentence of
108 months imprisonment. Even if this constituted procedural
error, we conclude it was harmless, because we can say with fair
assurance that the district court’s explicit consideration of
Bazemore’s arguments would not have affected the sentence that
was imposed.
We therefore affirm the district court’s judgment. 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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