UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY ANTWAN MIAL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:09-cr-00146-H-1)
Submitted: September 28, 2011 Decided: November 21, 2011
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, William M. Gilmore, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Corey Antwan Mial pled guilty, without the benefit of
a plea agreement, to unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). Mial was initially sentenced to 110 months’
imprisonment, and filed an appeal pursuant to Anders v.
California, 386 U.S. 738 (1967). On the parties’ consent
motion, we remanded Mial’s case to the district court for
resentencing. Mial’s revised advisory Guidelines range was
calculated to be 84-105 months’ imprisonment. The district
court sentenced Mial to ninety-six months’ imprisonment. On
appeal, Mial raises two challenges to the procedural
reasonableness of his sentence. We affirm.
Mial first contests the six-level enhancement he
received pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 3A1.2(c)(1) (2009). This enhancement was predicated on the
probation officer’s finding that, in fleeing from apprehension
by the police, Mial assaulted the arresting officer, R.L. Boyce,
“in a manner creating a substantial risk of serious bodily
injury.” USSG § 3A1.2(c)(1). In support of his objection to
the enhancement, Mial testified that he could not have assaulted
Boyce because he had dislocated his right shoulder eight days
prior to his arrest, and his arm was in a sling. Mial’s aunt
also testified to Mial’s shoulder injury. In response, the
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prosecutor recounted Boyce’s testimony, which had been offered
in support of the same enhancement at Mial’s first sentencing.
According to Boyce, Mial knew Boyce was a police officer from
prior interactions and called Boyce by name. While armed, Mial
hit Boyce in the face and fled; Mial then removed his gun from
the waistband of his pants and discarded it. Boyce caught Mial,
at which point Mial struck Boyce several times in the chest and
face, knocked him to the ground, climbed on top of him, and
continued to hit him. Boyce required the assistance of another
officer to quell the assault.
In overruling the objection, the district court
expressly declined to credit Mial’s testimony, which was, the
court noted, uncorroborated by any objective proof. The court
further noted that Mial was a four-time convicted felon who had
a proclivity towards physical violence, including assaulting
police officers.
In assessing an appellate challenge to the application
of an enhancement, this court reviews for clear error the
district court’s factual findings underlying the application of
that enhancement. United States v. Carter, 601 F.3d 252, 254
(4th Cir. 2010). We easily conclude that the district court
committed no error, let alone clear error, in applying this
enhancement. The district court was well-within its discretion
to disbelieve Mial’s testimony. See United States v. Layton,
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564 F.3d 330, 334 (4th Cir.) (explaining that, in reviewing the
district court’s application of the Sentencing Guidelines,
“[t]he district court’s credibility determinations receive great
deference” (internal quotation marks omitted)), cert. denied,
130 S. Ct. 290 (2009). Further, the facts as described in
Boyce’s testimony are sufficient to support the enhancement.
See, e.g., United States v. Cooper, 185 F. App’x 286, 287-88
(4th Cir. 2006) (unpublished after argument) (upholding USSG
§ 3A1.2 enhancement when defendant possessed a firearm
immediately prior to encounter with police officer; defendant
struggled with the officer, striking him in the face two times;
and, after defendant dropped the firearm, it was discharged by
another officer).
Mial next challenges the reasonableness of his
sentence. This court applies an abuse of discretion standard of
review as to this claim. Gall v. United States, 552 U.S. 38, 51
(2007); see also United States v. Diosdado-Star, 630 F.3d 359,
363 (4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).
Reasonableness review requires appellate consideration of both
the procedural and substantive reasonableness of a sentence.
Gall, 552 U.S. at 51. In determining the procedural
reasonableness of a sentence, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, considered the 18 U.S.C. § 3553(a) (2006) factors,
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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). The
explanation must be sufficient to allow for “meaningful
appellate review,” id. (internal quotation marks omitted), such
that the appellate court need “not guess at the district court’s
rationale.” Id. at 329.
Mial assigns procedural error to the district court’s
failure, despite Mial’s request for a sentence at the low end of
the Guidelines range, to explain its reasons for selecting a
ninety-six-month sentence in this case. Because Mial preserved
this issue by arguing for a sentence other than that which he
ultimately received, our review is for an abuse of discretion.
See United States v. Lynn, 592 F.3d 572, 583–84 (4th Cir. 2010).
Based on our review of the sentencing transcript, we
agree that the district court’s explanation in this case was
insufficient, thereby rendering Mial’s sentence procedurally
unreasonable. Thus, “we [must] reverse unless we conclude that
the error was harmless.” Id. at 576. The Government may
establish that such a procedural error was harmless, and thus
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avoid remand, by showing “that the error did not have a
substantial and injurious effect or influence on the result and
we can say with fair assurance that the district court’s
explicit consideration of [the defendant’s] arguments would not
have affected the sentence imposed.” United States v. Boulware,
604 F.3d 832, 838 (4th Cir. 2010) (alteration in original)
(internal quotation marks and alterations omitted); see also
Lynn, 592 F.3d at 585.
Applying this standard to the facts of this case, we
readily conclude that the Government has satisfied its burden of
showing that the district court’s procedural error was harmless.
We first note that, at the resentencing hearing, the district
court referenced the transcript of Mial’s original sentencing,
at which the court discussed Mial’s background as it was
relevant to the § 3553(a) sentencing factors. Specifically, the
court offered the following comments:
I’m familiar with Mr. Mial to the extent his
background is contained in the pre-sentence report.
He’s twenty-five years of age. He has his GED. He
has no dependants. [sic] He has obviously had
previous run-ins with the law, but that is all
encompassed in his being a VI criminal history
category. So no further focus on that issue. I’m
aware that he had an upbringing without a father, and
I’m aware that his mother has — his biological mother
had addictions as he was growing up. I’m also aware
that, so far as I can ascertain, he’s twenty-five
years of age and he has never been employed. So, what
should I do in this case and why . . . ?
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(J.A. 43). * Given the district court’s individualized assessment
of Mial’s history and characteristics at the original sentencing
hearing, coupled with its decision on resentencing to impose a
sentence in the middle of the revised Guidelines range, we agree
with the Government that any shortcoming in the court’s
explanation for the sentence imposed on resentencing is
harmless. See United States v. Montes-Pineda, 445 F.3d 375, 381
(4th Cir. 2006) (noting that “[t]he context surrounding a
district court’s explanation may imbue it with enough content
for us to evaluate both whether the court considered the
§ 3553(a) factors and whether it did so properly”).
The Government’s position is further supported by the
fact that the lone argument Mial advanced in favor of a sentence
at the low end of the Guidelines range — that he had availed
himself of training and educational opportunities offered by the
Bureau of Prisons, see 18 U.S.C. § 3553(a)(2)(D) (directing the
sentencing court to consider the need for the defendant’s
sentence to provide educational and training opportunities) —
was hardly compelling, particularly when juxtaposed with the
district court’s reasons for denying Mial’s objection to the
six-level enhancement. See Boulware, 604 F.3d at 839-40
*
Citations to the “J.A.” refer to the joint appendix
submitted by the parties.
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(explaining that comparative weakness of a defendant’s
argument(s) for a lower sentence is one reason to decline to
remand a case for further explanation). Finally, we have little
doubt that the district court considered this argument, as it
was the only point advanced by counsel, and the Government
specifically addressed it in its sentencing argument. See id.
at 839 (holding that, “even if the district court erred by not
adequately explaining its reasons for rejecting Boulware’s
argument for a below-guidelines sentence, we are quite confident
that the district court undertook that analysis and considered
Boulware’s argument”).
For these reasons, we conclude that, even though the
district court might have said more at the resentencing hearing
to demonstrate its individualized consideration of Mial’s
arguments, remand in this instance is unwarranted. Accordingly,
we affirm the judgment of the district court. We deny Mial’s
motion for leave to file a pro se supplemental brief. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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