UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4554
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
XAVIER VIDAL JENNETTE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR-1)
Argued: October 23, 2012 Decided: December 6, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND,
P.A., Raleigh, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2006, a jury convicted Xavier Jennette of identity
theft, wire fraud, and several related offenses, and the
district court sentenced him to 121 months in prison. Jennette
appealed, and we vacated his sentence and remanded for
resentencing. On remand, the district court again imposed a
sentence of 121 months. Jennette now appeals this second
sentence. Jennette contends that a court reporter’s delay in
producing a transcript that he needed for his first appeal
denied his right to due process. He also contends that the
district court abused its discretion at resentencing by refusing
to consider certain evidence that he wanted to offer. Finally,
he contends that the district court committed procedural error
by misapplying the Sentencing Guidelines and failing to consider
the factors listed in 18 U.S.C. § 3553(a). Finding no merit in
these contentions, we affirm.
I.
Jennette’s first appeal proceeded slowly because the court
reporter responsible for producing transcripts of the trial and
sentencing produced them in piecemeal fashion and did not
produce them in total until 16 months after the deadline we had
imposed. Once the transcripts were produced and the appeal
proceeded, we vacated the sentence and remanded, finding that
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the district court had abused its discretion by denying a motion
from Jennette’s attorney to withdraw. United States v.
Jennette, 387 Fed. Appx. 303 (4th Cir. 2010).
At the resentencing, Jennette called Anthony Wallace, a co-
conspirator who had testified against him at trial. After
trial, Wallace had signed an affidavit recanting his trial
testimony and stating that Jennette was innocent. However,
Wallace later told Jennette’s counsel that the affidavit was
false, essentially recanting his recantation. Still, Jennette
called Wallace to testify at the resentencing, 1 but Wallace
refused to do so, asserting his Fifth Amendment rights in
response to each question he was asked. Jennette then
unsuccessfully sought to introduce evidence that Wallace’s trial
testimony implicating Jennette was false and his post-trial
affidavit exonerating Jennette was true. Eventually, because
the district court decided that Wallace was not credible, it
disregarded all of his testimony.
The district court then again sentenced Jennette to 121
months. The new sentence reflected the district court’s
application of the Sentencing Guidelines, including enhancements
for Jennette’s leadership role in criminal activity involving
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Jennette asserted that this testimony could have rebutted
evidence the government offered in favor of enhancements and an
upward departure.
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five or more individuals, U.S.S.G. § 3B1.1(a); abusing a
position of trust, U.S.S.G. § 3B1.3; and obstructing justice.
U.S.S.G. § 3C1.1. Additionally, the new sentence reflected an
upward departure based upon the district court’s finding that
the offense level determined by the Guidelines substantially
underestimated the seriousness of the offense. U.S.S.G. §
2B1.1, Application Notes 19. The district court also noted that
“in the alternative, the Court would impose the exact same
sentence as a variance under 18 U.S.C. § 3553(a).” S.J.A. 1349.
II.
We first address Jennette’s contention that the delay in
transcript production during his first appeal denied him due
process. We review claims of due process violations de novo.
United States v. Shealy, 641 F.3d 627, 633 (4th Cir. 2011).
In determining whether delay in processing an appeal denies
a criminal defendant due process, we consider the “[l]ength of
delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.” United States v.
Johnson, 732 F.2d 379, 381 (4th Cir. 1984)(quoting Barker v.
Wingo, 407 U.S. 514, 530 (1972)). Here, we consider the fourth
factor, prejudice, to be dispositive because Jennette suffered
none. We first note that, because Jennette is serving a
sentence for a conviction that is not being appealed, and
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because we affirm the totality of the sentence imposed by the
district court—the same sentence the district court imposed in
the first sentencing—the delay in obtaining transcripts did not
add to Jennette’s prison sentence. Jennette also claims that
Wallace may not have recanted his post-trial affidavit had the
appellate process run faster and the resentencing occurred
earlier. However, there is nothing in the record that allows a
reasonable inference that it was the passage of time, rather
than some other factor, which motivated Wallace to recant his
affidavit. Jennette’s assertion otherwise is mere speculation,
which is insufficient to provide a factual basis for a claim of
prejudice.
Moreover, we reject Jennette’s assertion that the decision
of a witness to assert his Fifth Amendment rights is the type of
prejudice which has been found to support a due process claim.
The Supreme Court has observed that a delay may cause prejudice
if a witness dies or disappears during the delay or is unable to
recall accurately the events of the distant past. Barker, 407
U.S. at 532. Here, Wallace was available to testify at the
resentencing, and there is no indication that his memory was
impaired; he simply chose to assert his Fifth Amendment rights.
Therefore, Jennette was not prejudiced in a way that would
support a due process claim.
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III.
We next address Jennette’s contention that the district
court erred by refusing to admit evidence that he wanted to
offer for the purpose of showing which of Wallace’s conflicting
stories was true. We review this evidentiary ruling for abuse
of discretion. United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010).
At resentencing, the district court was aware of Wallace’s
trial testimony, his affidavit recanting that testimony, and his
recantation of that recantation. The district court properly
considered Wallace’s credibility and then determined that his
credibility was so lacking that the court would not consider any
of Wallace’s testimony. See United States v. McKenzie-Gude, 671
F.3d 452, 463 (4th Cir. 2011) (noting the great deference
afforded the district court’s credibility determinations at
sentencing). Thus, the district court did not abuse its
discretion by refusing to rely on Wallace or any evidence
offered to support or refute any version of Wallace’s testimony,
or to prolong the hearing to allow the presentation of any other
evidence concerning Wallace’s completely discounted testimony.
IV.
We turn next to Jennette’s challenges to the district
court’s application of the Sentencing Guidelines and 18 U.S.C. §
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3553(a). In reviewing any sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” we
apply a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). Ordinarily, we first
“ensure that the district court committed no significant
procedural error.” Id. at 51. “If, and only if, we find the
sentence procedurally reasonable can we ‘consider the
substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.’” United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).
In imposing a criminal sentence, a district court must
“apply the relevant § 3553(a) factors to the specific
circumstances of the case before it.” Carter, 564 F.3d at 328.
However, “this is not to say that the district court must
robotically tick through § 3553(a)’s every subsection,” U.S. v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006), as long as the
district court makes an “individualized assessment based on the
facts presented.” Gall, 552 U.S. at 50.
Here, the district judge had presided over Jennette’s five-
day trial, his initial two-day sentencing hearing, and the two-
day resentencing. Throughout the sentencing process, the
district court demonstrated intimate familiarity with the
details of the case, even correcting Jennette’s counsel when he
made an assertion that was inconsistent with the presentence
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report. At both sentencing hearings, the district court heard
extensive arguments on the § 3553(a) factors and plainly gave
Jennette the individualized assessment required by Gall. For
example, the district court noted that Jennette’s crime imposed
significant non-monetary harm on his victims and that Jennette
had lied under oath. Thus, we conclude that Jennette received
the individualized sentence to which he is entitled.
Jennette also challenges the district court’s application
of the Sentencing Guidelines, specifically contending that it
erred in imposing enhancements and an upward departure. Even if
the district court had erred in applying the Sentencing
Guidelines, the errors would be harmless. As we held in United
States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011),
errors in applying the Sentencing Guidelines are harmless where,
even if the district court had applied the Guidelines properly,
it (1) would have imposed the same sentence and (2) the sentence
would have been reasonable. Here, the district court stated
that it would have imposed the same sentence regardless of the
Guidelines calculation, and Jennette has not asserted that the
sentence was substantively unreasonable. Thus, any error in the
district court’s Guidelines calculation would have been
harmless.
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V.
For the foregoing reasons, we affirm the sentence imposed
by the district court.
AFFIRMED
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