UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4757
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERARD FENNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:12-cr-00115-BR-1)
Submitted: April 30, 2015 Decided: May 20, 2015
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lynne L. Reid, L.L. REID LAW, Chapel Hill, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerard Fenner appeals from the 63-month term of
imprisonment imposed upon remand for resentencing. Fenner
pleaded guilty without a written plea agreement to one count of
possessing a firearm and ammunition by a felon, in violation of
18 U.S.C. §§ 922(g), 924 (2012). Fenner argues that the
district court procedurally erred in failing to adequately
explain its sentence. He contends that the court did not fully
credit his rehabilitative efforts in prison and did not state
why it rejected his argument for a 51-month sentence. Fenner
also asserts that the sentence is substantively unreasonable
because it is greater than necessary to comply with the purposes
of sentencing. We affirm.
We review a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). The court first reviews for significant procedural
error, and if the sentence is free from such error, it then
considers substantive reasonableness. Id. at 51. Procedural
error includes improperly calculating the Sentencing Guidelines
range, treating the Guidelines range as mandatory, failing to
consider the 18 U.S.C. § 3553(a) (2012) factors, and failing to
adequately explain the selected sentence. Id. To adequately
explain the sentence, the district court must make an
“individualized assessment” by applying the relevant § 3553(a)
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factors to the case’s specific circumstances. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). The individualized
assessment need not be elaborate or lengthy, but it must be
adequate to allow meaningful appellate review. Id. at 330.
Substantive reasonableness is determined by considering the
totality of the circumstances, and if the sentence is within the
properly-calculated Guidelines range, this court applies a
presumption of reasonableness. United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
Fenner argues that the district court procedurally erred in
failing to adequately explain its sentence. The Government
replies that the district court sufficiently explained its
sentencing rationale and considered Fenner’s recent
rehabilitative efforts. Here, the district court listened to
Fenner’s argument for a low-end Guidelines sentence. In
imposing the sentence, the court referenced Fenner’s completion
of his GED. The court explicitly stated that it had considered
the § 3553(a) factors. The court reasoned that efforts to deter
Fenner from a life of crime have failed and that he has a
history of violence and drug felonies, both things from which
the public needs to be secure. We conclude that the court
sufficiently considered Fenner’s request for a 51-month sentence
and its reasoning was adequate to permit meaningful review. See
United States v. Worley, 685 F.3d 404, 410 (4th Cir. 2012)
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(explaining that while the district court did not explicitly
address most of the defendant’s arguments about postsentencing
rehabilitation, the court has “never required a sentencing court
to discuss each § 3553(a) factor in a ‘checklist fashion’”
(citation omitted)). Therefore, we find no procedural error.
Fenner argues that his recent rehabilitative efforts are
better evidence of his character than his past criminal conduct
and that the court’s sentence does not reflect consideration of
this. Therefore, he contends, under the totality of the
circumstances, the sentence is substantively unreasonable
because it is greater than necessary to comply with the purposes
of sentencing. The Government argues that Fenner’s recent
activity was not sufficient to overcome his violent criminal
history and numerous supervision violations. “Any sentence that
is within or below a properly calculated Guidelines range is
presumptively [substantively] reasonable. Such a presumption
can only be rebutted by showing that the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a)
factors.” United States v. Louthian, 756 F.3d 295, 306 (4th
Cir.) (citations omitted), cert. denied, 135 S. Ct. 421 (2014).
It was reasonable for the district court to conclude that
Fenner’s efforts at rehabilitation during his period of federal
imprisonment were not substantial enough to outweigh the
countervailing evidence of the need to deter Fenner from further
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criminal activity and to protect the public. Further, although
obtaining a GED and completing a drug program is commendable,
completion of an art class and not testing positive for drugs or
alcohol while in prison are not extraordinary. We therefore
conclude that Fenner has not met his burden of rebutting the
presumption that the within-Guidelines sentence is substantively
reasonable.
Accordingly, we affirm the sentence. 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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