UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4833
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICARA KENARIE DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:09-cr-00374-F-1)
Submitted: May 27, 2011 Decided: June 8, 2011
Before KING, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vicara Kenarie Davis pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and
was sentenced to a within-Guidelines term of eighty-seven months
imprisonment. Davis appeals, contending that the district court
committed procedural error by rejecting, without an adequate
explanation, his argument for a sentence below the Guidelines
range based on the anticipated elimination of “recency” points
for criminal history under U.S. Sentencing Guidelines Manual
§ 4A2.1(e) (2009). We affirm.
Davis’ criminal history score included two points
awarded under USSG § 4A1.1(e) for having committed the instant
offense less than two years after his release from confinement
on a prior sentence. At his sentencing hearing in July 2010,
Davis objected to the inclusion of these two points on the
ground that the Sentencing Commission had submitted a proposed
amendment to Congress to eliminate § 4A1.1(e) and consideration
of the recency of a defendant’s release from a prior sentence
which would take effect in November 2010 unless Congress acted
to block it. 1 The district court overruled his objection and
subsequently declined to impose a variance sentence below the
advisory Guidelines range on the same ground.
1
See USSG App. C, Amendment 742, eff. Nov. 1, 2010.
2
We review a sentence for procedural and substantive
reasonableness, Gall v. United States, 552 U.S. 38, 51 (2007),
first ensuring that the district court did not commit any
“significant procedural error,” such as failing to properly
calculate the applicable Guidelines range, failing to consider
the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors, or
failing to adequately explain the sentence. Id. When either
party “presents non-frivolous reasons for imposing a different
sentence than that set forth in the advisory Guidelines, a
district judge should address the party’s arguments and explain
why he has rejected those arguments.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
citation omitted). If no procedural error occurred, we presume
that a sentence within a properly calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
Davis argues that the inclusion of the two criminal
history points under § 4A1.1(e) 2 resulted in a Guidelines range
that was greater than necessary to meet the sentencing goals of
§ 3553(a). He maintains that he presented a non-frivolous
2
The district court did not clearly err in overruling
Davis’ objection to his criminal history score, which was
correct under the applicable 2009 Guidelines Manual. See USSG
§ 1B1.11(a) (sentencing court shall use Guidelines Manual in
effect on date of sentencing).
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argument for a sentence below the Guidelines range — the
proposed elimination of recency points — but the district court
did not provide an explanation that permits “meaningful
appellate review,” as required by Carter, 564 F.3d at 330
(quoting Gall, 552 U.S. at 597). Davis argues that the district
court’s explanation for imposing a sentence within the
Guidelines range was not coherent, that the appeals court may
not guess at the district court’s reason for rejecting his
request for a variance, and that resentencing is necessary so
that the district court may more clearly explain its ruling.
We disagree. The district court adequately responded
to Davis’ argument for a below-Guidelines sentence by explaining
that Davis’ continued criminal conduct after release from a
prior sentence indicated that he had not decided to end his
criminal activity. As a result, the court did not believe that
the proposed change in the Guidelines warranted a sentence below
the Guidelines range. The court’s explanation was brief but
sufficient to comply with Gall and Carter. Therefore, we
conclude that the district court did not commit procedural error
and the within-Guidelines sentence was reasonable.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
4
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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