UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH A. GARRETT,
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-00048-IMK-JSK-1; 1:14-cr-00057-IMK-
JSK-1)
Submitted: March 30, 2016 Decided: April 15, 2016
Before DUNCAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West
Virginia, for Appellant. Shawn Angus Morgan, Assistant United
States Attorney, Clarksburg, West Virginia, Tara Noel Tighe,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In the superseding indictment returned in Case No. 1:14-cr-
00048-IMK-JSK-1 (N.D. W. Va.), the Government charged Joseph A.
Garrett with failing to update his sex offender registration, in
violation of 28 U.S.C. § 2250(a) (2012) (hereinafter “CR-48”).
Thereafter, in a separate criminal case, Case No. 1:14-cr-00057-
IMK-JSK-1 (N.D. W. Va.) (hereinafter “CR-57”), the Government
charged Garrett with being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012), and
possessing an unregistered firearm (specifically, a sawed-off
shotgun), in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871
(2012). Garrett elected to plead guilty in CR-48, without the
benefit of a written plea agreement, but proceeded to a jury
trial in CR-57. After a three-day trial at which the Government
presented the testimony of nine witnesses, the jury convicted
Garrett of both counts. The district court sentenced Garrett to
a total of 147 months’ imprisonment, consisting of 120 months
(concurrent) on the charges in CR-57 and 27 months (consecutive)
in CR-48. This appeal timely followed.
Garrett’s appellate attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there
are no nonfrivolous issues for appeal but asking us to review
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the sufficiency of the Government’s trial evidence 1 and the
reasonableness of Garrett’s sentence. 2 The Government has
declined to file a response brief. For the reasons that follow,
we affirm the criminal judgment.
Garrett first challenges the sufficiency of the
Government’s evidence of his guilt of the crimes charged in CR-
57, asking us to review whether the district court erred in
denying Garrett’s Fed. R. Crim. P. 29 motion for a judgment of
acquittal. We review that ruling de novo. United States v.
Said, 798 F.3d 182, 193 (4th Cir.), petition for cert. filed,
No. 15-7332 (U.S. Dec. 8, 2015). “A defendant challenging the
sufficiency of the evidence faces a heavy burden, as reversal
for insufficient evidence is reserved for the rare case where
the prosecution’s failure is clear.” Id. at 194 (alteration and
internal quotation marks omitted).
We must uphold a jury’s guilty verdict if there is
substantial evidence, viewed in the light most favorable to the
1Counsel does not raise any suggested issues related to
Garrett’s guilty plea in CR-48.
2After receiving notice that an Anders brief had been
filed, Garrett filed in this court a pro se pleading in which he
asserted that his trial attorney was ineffective for failing to
call a certain witness. But Garrett’s failure to identify, at a
minimum, what evidence this individual would have provided and
that counsel was aware that this individual possessed relevant
information, renders this claim a patent nonstarter.
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Government, to support it. United States v. Hamilton, 701 F.3d
404, 409 (4th Cir. 2012); see United States v. Cornell, 780 F.3d
616, 630 (4th Cir.) (defining substantial evidence), cert.
denied, 136 S. Ct. 127 (2015). “In determining whether there is
substantial evidence to support a verdict, we defer to the
jury’s determinations of credibility and resolutions of
conflicts in the evidence, as they are within the sole province
of the jury and are not susceptible to judicial review.” United
States v. Louthian, 756 F.3d 295, 303 (4th Cir.) (internal
quotation marks omitted), cert. denied, 135 S. Ct. 421 (2014).
We have reviewed the trial transcript and conclude that the
Government’s evidence, which included the testimony of multiple
eyewitnesses, coupled with the parties’ factual stipulations,
more than supported the jury’s guilty verdicts. See United
States v. Reed, 780 F.3d 260, 271 (4th Cir.) (stating elements
of § 922(g) offense), cert. denied, 136 S. Ct. 167 (2015); see
also United States v. Jamison, 635 F.3d 962, 967-68 (7th Cir.
2011) (reciting elements of § 5861(d) offense).
Counsel next asks us to evaluate the reasonableness of
Garrett’s aggregate 147-month sentence. We review 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. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). In so
doing, we first examine the sentence for procedural error, which
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includes “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C. § 3553(a) (2012)] factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Lymas, 781 F.3d at
111–12 (quoting Gall, 552 U.S. at 51). We then consider the
substantive reasonableness of the sentence, affording a
presumption of substantive reasonableness to any sentence that
is within or below a properly calculated Guidelines range. See
Rita v. United States, 551 U.S. 338, 346–59 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence);
Louthian, 756 F.3d at 306.
Counsel does not identify any particular procedural or
substantive error in Garrett’s sentence, and our independent
review of the sentencing, including the computation of Garrett’s
Guidelines range, did not reveal any such error. The district
court relied on and adopted the uncontested presentence report,
which properly calculated Garrett’s advisory Guidelines range.
The court also responded to the parties’ sentencing arguments
and provided a robust explanation for the selected sentence,
which it linked to the relevant § 3553(a) sentencing factors.
Finally, Garrett does not endeavor to overcome the presumption
of substantive reasonableness applied to his within-Guidelines
sentence, and our review of the record demonstrates no basis on
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which he could do so. See Louthian, 756 F.3d at 306 (explaining
that the presumption of substantive reasonableness afforded a
within-Guidelines sentence “can only be rebutted by showing that
the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors”).
In accordance with Anders, we have examined the entirety of
the records in this appeal for any nonfrivolous appellate issues
and have found none. Accordingly, we affirm the criminal
judgment. This court requires that counsel inform Garrett, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Garrett 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 Garrett. 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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