United States v. John Ham, JR., 4th Cir. (2011)
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Scribd Government DocsUnited States v. John Ham, JR., 4th Cir. (2011)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4992
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN FORREST HAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:10-cr-00046-HFF-1)
Submitted:
May 26, 2011
Decided:
July 12, 2011
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.
Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Forrest Ham, Jr., appeals his conviction and 319month sentence imposed by the district court following a guilty
plea
to
possession
violation
(2006)
of
18
(Count
of
U.S.C.
One);
firearm
by
922(g)(1),
carjacking,
in
convicted
924(a)(2),
violation
felon,
in
and
924(e)
18
U.S.C.
of
2119(1) (2006) (Count Two); and possession of a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. 924(c)(1) (2006).
Hams counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), finding
no
meritorious
reasonableness
grounds
supplemental
designating
of
Hams
brief
him
for
sentence.
arguing
as
an
appeal
that
armed
the
but
Ham
questioning
filed
district
career
criminal
court
and
the
pro
se
erred
by
career
offender and by assessing criminal history points for certain
prior convictions.
This
applying
States,
an
552
For the reasons that follow, we affirm.
court
abuse
U.S.
of
38,
reviews
sentence
for
discretion
standard.
51
see
(2007);
also
Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
reasonableness,
Gall
United
v.
United
States
v.
This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence.
Gall, 552 U.S. at 51.
In determining procedural reasonableness, this court
considers
whether
the
district
2
court
properly
calculated
the
defendants advisory Guidelines range, considered the 3553(a)
factors, 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).
An
extensive explanation is not required as long as the appellate
court is satisfied that [the district court] has considered
the parties arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.
United States v.
Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)) (alterations in original),
cert. denied, 131 S. Ct. 165 (2010).
If the court finds no
significant procedural error, it next assesses the substantive
reasonableness
totality
of
of
the
the
sentence,
circumstances,
taking
including
variance from the Guidelines range.
into
the
account
extent
of
the
any
United States v. Morace,
594 F.3d 340, 345-46 (4th Cir.) (quoting Gall, 552 U.S. at 51),
cert. denied, 131 S. Ct. 307 (2010).
Because Ham did not request a sentence different than
the one ultimately imposed, we review his sentence for plain
error.
United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir.
3
2010).
To establish plain error, Ham must show: (1) an error
was made; (2) the error is plain; and (3) the error affects
substantial rights.
342-43
(4th
United States v. Massenburg, 564 F.3d 337,
Cir.
requirements,
2009).
correction
Even
of
the
if
Ham
error
satisfies
remains
these
within
[the
courts] discretion, which [the court] should not exercise . . .
unless the error affect[s] the fairness, integrity or public
United States v. Muhammad,
reputation of judicial proceedings.
478 F.3d 247, 249 (4th Cir. 2007).
With these standards in mind, we have reviewed the
record and conclude that Hams sentence is both procedurally and
In accordance with Anders, we have
substantively reasonable.
reviewed
the
meritorious
entire
issues
record
for
in
this
appeal.
case
We
and
have
therefore
found
affirm
no
Hams
convictions and sentence.
This
writing,
United
of
court
the
States
right
for
requires
to
further
that
petition
review.
counsel
the
If
inform
Supreme
Ham
Court
requests
Ham,
in
of
the
that
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.
Counsels motion must
state that a copy thereof was served on Ham.
We dispense with
oral
contentions
argument
because
the
facts
and
legal
are
adequately
presented
in
the
materials
before
the
court
and
argument would not aid the decisional process.
AFFIRMED
