United States v. Clarence Thompson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4172

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CLARENCE THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:14-cr-00049-IMK-JSK-1)

Submitted: October 27, 2015 Decided: November 12, 2015

Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

L. Richard Walker, Senior Litigator, Clarksburg, West Virginia;
Kristen Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia; David J.
Perri, Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Clarence Thompson pled guilty, without a plea agreement, to

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2012). The district court sentenced

Thompson to 70 months’ imprisonment. Counsel has filed a brief

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

that there are no meritorious grounds for appeal but questioning

whether Thompson’s sentence is reasonable. Thompson filed a

supplemental pro se brief, arguing that his criminal history

category was miscalculated. We affirm.

We review a sentence for reasonableness, applying “a

deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007). This review entails appellate

consideration of both the procedural and substantive

reasonableness of the sentence. Id. at 51. In assessing

procedural reasonableness, we consider whether the district

court properly calculated the defendant’s advisory Sentencing

Guidelines range, gave the parties an opportunity to argue for

an appropriate sentence, considered the 18 U.S.C. § 3553(a)

(2012) factors, and sufficiently explained the selected

sentence. Gall, 552 U.S. at 49-51. If there are no procedural

errors, we then consider the substantive reasonableness of a

sentence, evaluating “the totality of the circumstances.” Id.

at 51. A sentence is presumptively reasonable if it is within

2
the Guidelines range, and this “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.), cert. denied, 135 S. Ct.

421 (2014).

In this case, the record establishes that Thompson’s

sentence is procedurally and substantively reasonable. Though

Thompson contends that one of his prior convictions was

erroneously assessed six criminal history points, the record

reveals that the challenged conviction was, in fact, properly

assessed three points.

We also reject the argument that Thompson’s sentence is

substantively unreasonable because the district court could have

departed from the Guidelines to account for the time he served

in state custody. We do not “review a sentencing court’s

decision not to depart unless the court mistakenly believed that

it lacked the authority to do so.” Louthian, 756 F.3d at 306.

The record makes clear that the district court knew it could

depart, but chose not to, a decision wholly within its

discretion. Finally, the court did not abuse its discretion in

declining to vary downward from the Guidelines range.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Thompson’s conviction and sentence.

3
This court requires that counsel inform Thompson, in writing, of

the right to petition the Supreme Court of the United States for

further review. If Thompson 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 Thompson.

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