United States v. John Ham, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4992

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOHN FORREST HAM, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:10-cr-00046-HFF-1)

Submitted: May 26, 2011 Decided: July 12, 2011

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

John Forrest Ham, Jr., appeals his conviction and 319-

month sentence imposed by the district court following a guilty

plea to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)

(2006) (Count One); carjacking, in violation of 18 U.S.C.

§ 2119(1) (2006) (Count Two); and possession of a firearm during

and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1) (2006). Ham’s counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), finding

no meritorious grounds for appeal but questioning the

reasonableness of Ham’s sentence. Ham filed a pro se

supplemental brief arguing that the district court erred by

designating him as an armed career criminal and a career

offender and by assessing criminal history points for certain

prior convictions. For the reasons that follow, we affirm.

This court reviews a sentence for reasonableness,

applying an abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007); see also United States v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence. Gall, 552 U.S. at 51.

In determining procedural reasonableness, this court

considers whether the district court properly calculated the

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defendant’s advisory Guidelines range, considered the § 3553(a)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence. Id.

“Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the record an individualized assessment based on the particular

facts of the case before it.” United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted). An

extensive explanation is not required as long as the appellate

court is satisfied “‘that [the district court] has considered

the parties’ arguments and has a reasoned basis for exercising

[its] own legal decisionmaking authority.” United States v.

Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United

States, 551 U.S. 338, 356 (2007)) (alterations in original),

cert. denied, 131 S. Ct. 165 (2010). If the court finds “no

significant procedural error,” it next assesses the substantive

reasonableness of the sentence, taking “‘into account the

totality of the circumstances, including the extent of any

variance from the Guidelines range.’” United States v. Morace,

594 F.3d 340, 345-46 (4th Cir.) (quoting Gall, 552 U.S. at 51),

cert. denied, 131 S. Ct. 307 (2010).

Because Ham did not request a sentence different than

the one ultimately imposed, we review his sentence for plain

error. United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.

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2010). To establish plain error, Ham “must show: (1) an error

was made; (2) the error is plain; and (3) the error affects

substantial rights.” United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009). Even if Ham satisfies these

requirements, “correction of the error remains within [the

court’s] discretion, which [the court] should not exercise . . .

unless the error affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Muhammad,

478 F.3d 247, 249 (4th Cir. 2007).

With these standards in mind, we have reviewed the

record and conclude that Ham’s sentence is both procedurally and

substantively reasonable. In accordance with Anders, we have

reviewed the entire record in this case and have found no

meritorious issues for appeal. We therefore affirm Ham’s

convictions and sentence.

This court requires that counsel inform Ham, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Ham requests that a

petition 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 Ham. We dispense with

oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED