UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4487

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONOVAN LETRELL HALL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:16-cr-00020-BO-1)

Submitted: February 20, 2018 Decided: February 28, 2018

Before GREGORY, Chief Judge, and DUNCAN and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Acting Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May- Parker, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Donovan Letrell Hall appeals following his guilty plea to being a felon in

possession of a firearm, in violation of

(g)(1), 924 (2012), and the

imposition of a 110-month downward variant sentence. Hall challenges both the

procedural and substantive reasonableness of his sentence and contends that the

Government violated the constitutional prohibition on double jeopardy by prosecuting

him after he was prosecuted for the same conduct in state court. We reject these

arguments and affirm the criminal judgment.

Turning first to Hall’s double jeopardy claim, because Hall did not raise this

argument in the district court, our review is limited only to plain error. See United States

v. Jackson,

, 270 n.2 (4th Cir. 2013) (reviewing unpreserved Fifth

Amendment double jeopardy challenge for plain error under United States v. Olano,

(1993)); United States v. Higgs,

(4th Cir. 2003)

(reviewing constitutional claim that was not raised below for plain error). The protection

against double jeopardy “prohibits the government from subjecting a person to multiple

punishments for the same offense.” United States v. Schnittker,

(4th Cir.

2015) (internal quotation marks omitted). However, under the dual sovereignty doctrine,

“the Supreme Court has continually held that federal and state crimes are not the same

offense, no matter how identical the conduct they proscribe.” United States v. Alvarado,

(4th Cir. 2006) (internal quotation marks omitted); see Abbate v.

United States,

(1959) (declining to overrule established principle

2 “that a federal prosecution is not barred by a prior state prosecution of the same person

for the same acts”).

While Hall is correct in that there are several certiorari petitions that raise this

issue currently pending before the Supreme Court, see, e.g., Gamble v. United States, No.

17-646 (docketed Nov. 2, 2017); Ochoa v. United States, No. 17-5503 (docketed Aug. 4.

2017), the Court has not granted certiorari in these cases. Thus, as Hall readily concedes,

Abbate remains good law, and we reject this argument on that basis.

We next consider Hall’s sentencing arguments. We review every federal sentence

for reasonableness, employing an abuse of discretion standard. United States v. Lymas,

(4th Cir. 2015). Reasonableness review first requires that we consider

whether the district court committed a significant procedural error, such as failing to

consider the

(a) (2012) factors or failing to adequately explain the

chosen sentence. Gall v. United States,

(2007). Hall first challenges the

procedural reasonableness of his sentence, focusing on the district court’s analytical

process and explanation for the selected sentence.

When rendering a sentence, the district court must make and place on the record

an individualized assessment based on the particular facts of the case. United States v.

Carter,

(4th Cir. 2009). While the sentencing court must state in

open court the specific bases for the selected sentence, the court’s explanation “need not

be exhaustive.” United States v. Avila,

(4th Cir. 2014); see also

United States v. Johnson,

(4th Cir. 2006) (court need not explicitly

reference § 3553(a) or discuss every factor on the record). The court’s explanation must

3 be sufficient “to satisfy the appellate court that [it] has considered the parties’ arguments

and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

United States,

(2007).

“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a

different sentence than that set forth in the advisory Guidelines, a district judge should

address the party’s arguments and explain why he has rejected those arguments.” United

States v. Bollinger,

(4th Cir. 2015) (internal quotation marks omitted).

Although it is sometimes possible to discern a sentencing court’s rationale from the

context surrounding its decision, United States v. Montes-Pineda,

(4th

Cir. 2006), “an appellate court may not guess at the district court’s rationale, searching

the record for statements by the Government or defense counsel or for any other clues

that might explain a sentence[,]” Carter,

. An insufficient explanation

of the sentence imposed constitutes significant procedural error by the district court.

United States v. Lynn,

(4th Cir. 2010).

Where, as here, the defendant preserved the issue of whether the explanation was

adequate by arguing for a sentence different than that which was imposed, we review the

issue for abuse of discretion.

If we find such abuse, we must reverse unless we

conclude that the error was harmless.

The Government bears the burden of 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.

4 Boulware,

(4th Cir. 2010) (alterations and internal quotation marks

omitted).

Hall does not contest the computation of his Guidelines range, which was then

reduced to the applicable 10-year statutory maximum. He does contend, however, that

the district court procedurally erred in failing to explain either why it declined to award a

downward departure based on U.S. Sentencing Guidelines Manual § 5K2.23, p.s. (2016),

or the reasons for the chosen sentence.

The first prong of this argument stalls out of the gate. Defense counsel did not

specifically ask the district court at sentencing to grant a downward departure under

USSG § 5K2.23, p.s., which permits—but does not require—the sentencing court to

depart downward from the defendant’s Guidelines range for a completed term of

imprisonment for another offense that would constitute relevant conduct to the instant

offense. The record makes plain that defense counsel instead framed her argument in

terms of a downward variance. By the same token, nothing in the record suggests that the

district court was unaware of its authority to depart downward on this basis. Because

“[w]e lack the authority to review a sentencing court’s denial of a downward departure

unless the court failed to understand its authority to do so[,]” United States v. Brewer,

(4th Cir. 2008), we agree with the Government that Hall’s challenge to

the procedural reasonableness of the sentence “is better suited as one to the general

explanation of the sentence, not the explanation of a particular departure ruling.”

(Appellee’s Br. (ECF No. 26) at 20).

5 On review, we conclude that the court’s statements prior to announcing sentence

demonstrate that Hall’s individualized circumstances informed the court’s decision to

grant a 10-month downward variance from the 120-month statutory maximum. Indeed,

the record makes plain the court’s view that a long sentence was appropriate mostly

because of Hall’s extensive criminal background, which had been punished previously

with light sentences and probationary terms. This is consistent with two of the main

purposes identified in

(a)(2)—to protect the public from future crimes

by Hall and to specifically deter Hall from continuing to engage in crime. Moreover, the

record establishes that a focal point at sentencing was Hall’s contention that his federal

sentence should be reduced, at minimum, in consideration of the state sentence he had

served. The district court actively engaged both attorneys on this topic and ultimately

acceded to defense counsel’s request for such a reduction—even if not to the full extent

sought. The sentencing transcript demonstrates that the judge considered Hall’s

individual characteristics and history, as well as the circumstances of this offense, see

(a)(1), in fashioning its sentence, see Rita,

.

Even if we were to find procedural error in the district court’s explanation, see

United States v. Blue,

(4th Cir. 2017) (vacating sentence and

remanding for resentencing when the record did not provide adequate “contextual

support” to discern the sentencing court’s reasons for rejecting defendant’s arguments for

a downward departure), we accept the Government’s alternative contention that such an

error is harmless, see Boulware,

. The court considered—and,

ultimately, mostly accepted—Hall’s argument for a sentence below the statutory

6 maximum, which was based on the following facts: (1) that Hall’s conviction arose from

a guilty plea as opposed to after trial; (2) that Hall accepted responsibility and apologized

to the arresting officer; (3) that Hall wanted to change his life for the better; and (4) that

the same conduct formed the basis for Hall’s state conviction. While it initially resisted

defense counsel’s arguments, the court eventually retreated from its position that it

should impose the statutory maximum 120-month sentence and awarded a 10-month

downward variance. Accordingly, even if there was a deficit in the court’s explanation,

we alternatively hold that the Government has established that such an error is harmless.

Finally, then, we address Hall’s challenge to the substantive reasonableness of his

sentence. Gall,

. Of course, we presume that a sentence within or below a

properly calculated Guidelines range is substantively reasonable. United States v. Susi,

(4th Cir. 2012); see Blue,

. “Such a presumption

can only be rebutted by showing that the sentence is unreasonable when measured against

the

(a) factors.” United States v. Louthian,

(4th Cir.

2014).

To undermine the presumption of reasonableness that attaches to the below-

Guidelines sentence he received, Hall relies on the same core reasons advanced to

demonstrate procedural error. But these arguments invite us to reweigh the § 3553(a)

factors and the relevant circumstances in this case, which we will not do. See United

States v. Jeffery,

(4th Cir. 2011) (recognizing that “district courts have

extremely broad discretion when determining the weight to be given each of the

§ 3553(a) factors”). On this record, we cannot say that the district court abused its

7 discretion in giving controlling weight to the need to protect the public from Hall’s

unrelenting criminal conduct, Hall’s extensive criminal history—which carries with it an

increased likelihood of recidivism—and the seriousness of the underlying offense, which

likewise was a focal point at sentencing. See

(a)(1)-(2). Accordingly,

we hold that Hall has failed to overcome the presumption of substantive reasonableness

afforded the below-Guidelines sentence he received.

For these reasons, we affirm the criminal judgment. 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

8