UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4729
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY LEE SWANN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00078-WO-1)
Submitted: April 19, 2013 Decided: May 10, 2013
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Lee Swann appeals his conviction and twenty-two
months sentence entered pursuant to his guilty plea to
possession of a firearm by a convicted felon. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious issues
for appeal but questioning whether Swann’s prior state
conviction for involuntary manslaughter was a predicate felony
and whether Swann’s sentence was reasonable. 1 Swann has filed a
pro se supplemental brief, rearguing the issues raised by
counsel. We affirm.
18 U.S.C. § 922(g)(1) (2006) prohibits the possession
of a firearm by any person “who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year.” At the time of Swann’s conviction, involuntary
manslaughter was a Class H felony. North Carolina v. Powell,
426 S.E.2d 91, 92 (N.C. App. 1993). The presumptive range of
imprisonment for a Class H felony was three years in prison,
with a maximum punishment of ten years. Id. Swann was given to
a three-year suspended sentence. Accordingly, as Swann could
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The district court imposed a variance sentence above the
advisory Guidelines range of 10-16 months in prison.
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have been sentenced to over a year in prison, Swann’s prior
conviction was a proper predicate under the statute. 2
We review sentences for reasonableness “under 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 determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006)
factors, and sufficiently explained the selected sentence. Id.
at 49-51. If the sentence is free of significant procedural
error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
“When rendering a sentence, the district court must
make an individualized assessment based on the facts
presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2
In his pro se brief, Swann appears to argue that, because
his sentence was suspended, it did not qualify as a predicate
offense. However, a qualifying predicate felony is one for
which Swann himself could have been sentenced to a prison term
exceeding one year. See United States v. Simmons, 649 F.3d 237,
247 (4th Cir. 2011). It is not required that Swann was actually
sentenced to serve (or did in fact serve) over one year.
Likewise, Swann’s assertion that his “involuntary” crime could
not constitute a predicate offense is without support.
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2009) (internal quotation marks and emphasis omitted), and must
“adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50. When a district court
imposes a sentence that falls outside of the applicable
Guidelines range, we consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). In
conducting this review, we “must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 552 U.S. at
51.
Here, counsel does not point to any specific alleged
error in Swann’s sentence. In his pro se brief, Swann asserts
that he did not have an opportunity to explain his prior
conviction or to note that he was permitted to possess a gun
under North Carolina law. However, the district court heard
extensive argument by counsel regarding the circumstances of the
prior conviction, and Swann declined to allocute. Moreover,
Swann admitted in the factual basis that his prior conviction
had not been expunged and that his civil rights had not been
restored.
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The district court clearly heard Swann’s arguments for
leniency, but the court found the aggravating factors of Swann’s
crime and background outweighed the mitigating factors. The
court properly considered the nature and circumstances of
Swann’s conviction and the fact that his relevant conduct was
more serious than mere possession of a firearm. Finally, the
court gave specific, detailed reasoning for the upward variance.
Accordingly, the sentence is not procedurally unreasonable.
Next, we conclude that the sentence was substantively
reasonable, as it was within the prescribed statutory range and
resulted from the district court’s proper weighing of the
relevant § 3553(a) factors. Here, the district court explained
at length its decision to sentence Swann above the Guidelines
range, referring multiple times to Swann’s continued, illegal
possession of a firearm; his lack of credibility; and his
reckless behavior while possessing the firearm. The district
court’s decision to depart six months above the Guidelines range
is supported by the record and does not constitute an abuse of
discretion.
This court requires that counsel inform her client, in
writing of his right to petition the Supreme Court of the United
States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
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leave to withdraw from representation. Counsel=s motion must
state that a copy thereof was served on the client. 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 this decisional process.
AFFIRMED
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