UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4895

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEVANTE MARCUS RICHMOND, a/k/a Man,

Defendant - Appellant.

No. 20-4074

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ARTHUR GENE EVANS, JR.,

Defendant - Appellant.

Appeals from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:18-cr-00864-TLW-1; 3:18-cr- 00864-TLW-2)

Submitted: January 29, 2021 Decided: February 23, 2021 Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina; John E. Duncan, LAW OFFICE OF JOHN E. DUNCAN, Lexington, South Carolina, for Appellants. Peter M. McCoy, Jr., United States Attorney, Columbia, South Carolina, Andrew R. De Holl, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Jevante Richmond (“Appellant Richmond”) and Arthur Evans (“Appellant Evans”)

(collectively “Appellants”) challenge the sentences they received after pleading guilty to

charges stemming from a twenty four hour crime spree in which Appellants stole three cars

and a wallet using guns and violence. Appellants claim the district court procedurally and

substantively erred in reaching its sentencing decisions.

We conclude Appellants’ sentences are procedurally reasonable because the district

court adequately addressed the requisite sentencing factors, as well as the arguments

submitted by each Appellant. Given that the district court has broad discretion when

weighing the sentencing factors, we further conclude the sentences were substantively

reasonable and the difference in the Appellants’ sentences was sufficiently justified by each

Appellant’s distinct conduct.

Therefore, finding no reversible error, we affirm.

I.

A.

Underlying Criminal Conduct

The underlying crimes at issue began when Appellant Evans stole a victim’s car at

gunpoint. Appellant Evans asked the victim for directions and then pointed a revolver at

her and ordered her out of the car. Appellants then drove the stolen car to a gun show,

where they broke into several trailers and stole five guns and 1,500 rounds of ammunition.

3 The following night, Appellants and Shelvey Grant (“Grant”) 1 attempted to steal three

more vehicles by using the same method they had employed the previous night. Two of

their attempts were successful.

During the unsuccessful second attempt, the victim grabbed the gun that was

brandished by Appellant Evans and struggled for control over it. With the help of Grant,

Appellant Evans regained control over the gun and struck the victim in the face. Appellant

Evans then stole the victim’s wallet and fired shots in the air as he fled with Appellant

Richmond in a recently stolen vehicle. Appellants then proceeded to their third carjacking,

in which Appellant Evans successfully stole a second car at gunpoint. Appellant Evans

fled the scene in the newly stolen car with Appellant Richmond following in the previously

stolen vehicle.

Police ultimately arrested Appellant Evans after he led them on a high-speed pursuit

in one of the stolen vehicles. Appellant Evans crashed the vehicle during the pursuit and

attempted to flee on foot before being apprehended. Appellant Richmond was arrested

weeks later, although by the time of his arrest he was already in jail on state charges that

included attempted murder and an additional carjacking.

B.

Appellants’ Plea Agreements and Sentences

Appellant Evans was indicted by a grand jury on eleven charges: four counts of

carjacking, three counts of brandishing a firearm during a crime of violence, one count of

1 Grant is not a party to this appeal.

4 discharging a firearm during a crime of violence, two counts of being a felon in possession

of a firearm, and one count of being in possession of stolen firearms. Appellant Richmond

was charged with one count of being a felon in possession of a firearm, one count of being

in possession of stolen firearms, and one count of brandishing a firearm during a crime of

violence. Both Appellants pled guilty pursuant to written plea agreements that did not

stipulate specific sentences.

The United States Probation Office filed presentence investigation reports (“PSRs”)

for both Appellants. The PSRs calculated advisory United States Sentencing Guidelines

(“Guidelines”) range sentences for each Appellant. Each sentence calculated by the PSRs

was within-Guidelines and consisted of 204 months of imprisonment for Appellant Evans

and 184–204 months of imprisonment for Appellant Richmond. Appellants were

originally set to be sentenced at a joint sentencing hearing held on July 16, 2019, but at that

hearing, the district court rejected the plea agreements.

The district court rejected the plea agreements due to the concern that the advisory

Guidelines range sentences they produced were “too lenient in light of the circumstances.”

J.A. 130. 2 After rejecting the plea agreements, the district court advised Appellants that

they had the right to withdraw their guilty pleas and noted that if they did not, “the court

may dispose of [their] cases less favorably” than the plea agreements contemplated. Id. at

165. Nonetheless, neither Appellant moved to withdraw his guilty plea, and a second joint

sentencing hearing was scheduled. At the conclusion of the second sentencing hearing, the

2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

5 district court sentenced Appellant Richmond to an above-Guidelines sentence of 240

months of imprisonment and Appellant Evans to an above-Guidelines sentence of 252

months of imprisonment.

Both Appellants timely appealed, claiming the sentences are the result of procedural

and substantive error.

II.

All sentences -- “whether inside, just outside, or significantly outside the Guidelines

range” -- are reviewed pursuant to an abuse of discretion standard. United States v. Blue,

(4th Cir. 2017) (quoting Gall v. United States,

(2007)).

“Under this deferential standard, we first review for procedural reasonableness.”

If we

conclude that the procedure was reasonable, we proceed to “consider the substantive

reasonableness of the sentence imposed.”

III.

A.

Procedural Reasonableness

The Guidelines set forth advisory sentence ranges, “requiring a sentencing court to

consider Guidelines ranges, . . . but permitting it to tailor the sentence in light of other

statutory concerns.” United States v. Booker,

(2005) (citing

(a)). The procedural prong of our review requires district courts to begin sentencing

proceedings by treating the Guidelines as “the starting point and the initial benchmark.”

Blue,

. Thereafter, the district court must “give the parties the opportunity

to argue for whatever sentence they deem appropriate and consider those arguments in light

6 of all of the factors stated in

(a).”

at 517–18. Finally, the “district

court must address the parties’ nonfrivolous arguments in favor of a particular sentence,

and if the court rejects those arguments, it must explain why in a sufficiently detailed

manner to allow this Court to conduct a meaningful appellate review.” United States v.

Provance,

(4th Cir. 2019) (internal quotation marks omitted). Failure

“to consider the § 3553(a) factors” or to “adequately explain the chosen sentence are

procedural errors.” Id.

Appellants claim the district court committed three procedural errors when

imposing their sentences. First, they argue the district court erred by focusing too narrowly

on only one of the § 3553(a) factors, specifically “the nature and circumstances of the

offense.”

(a)(1). Second, Appellants assert the district court failed to

adequately respond to their nonfrivolous arguments in favor of within-Guidelines

sentences. Finally, Appellant Richmond contends the district court erred by justifying its

imposition of an above-Guidelines sentence on a mistaken premise. According to

Appellant Richmond, the district court mistakenly concluded that Appellant Richmond had

several charges dismissed as a result his plea agreement and that his Guidelines sentencing

range would have been substantially higher if he had been convicted on all counts.

1.

Pursuant to § 3553(a), there are several factors a district court must consider when

imposing a sentence. However, we have made clear that a district court is not required to

“robotically tick through § 3553(a)’s every subsection” or “explicitly discuss every

§ 3553(a) factor” when explaining its chosen sentence, in part because many of the factors

7 can overlap. United States v. Johnson,

(4th Cir. 2006). Yet, Appellants

are correct that a district court cannot justify a sentence by simply “offering its view of the

seriousness of the offense” if it “ignored every other statutory factor.” United States v.

Lymas,

(4th Cir. 2015). But that is not to say that a district court is

required to “give all the different factors precisely equal weight.” United States v. Fowler,

(4th Cir. 2020). On the contrary, the facts of a particular case may

render it appropriate “for the sentencing court to have ‘attached great weight’ to a single

factor.” United States v. Pauley,

(4th Cir. 2007) (quoting Gall,

).

Here, although the district court was particularly concerned with the serious and

violent nature of the underlying criminal conduct, we are satisfied that the district court

properly considered the totality of the § 3553(a) factors with respect to each Appellant.

First, the district court’s detailed analysis of the nature of each Appellant’s conduct is

relevant to multiple § 3553(a) factors, namely “nature and circumstances of the offense,”

“the need for the sentence imposed . . . to reflect the seriousness of the offense,” and “the

need to avoid unwarranted sentence disparities among defendants.”

(a)(1), (a)(2)(A), (a)(6). Furthermore, the district court expressly considered factors

other than those pertaining to the nature of Appellants’ conduct, all while frequently

acknowledging the existence and significance of the § 3553(a) factors as a whole. For

example, the district court referenced the deterrence factor and noted that Appellant Evans

“was on parole at the time he committed this offense.” J.A. 253. The district court also

8 cited “[p]rotection of the public” and the need for “substance abuse testing and treatment”

as additional factors considered in both of Appellants’ sentences. Id. at 253, 258, 263.

Therefore, we conclude the district court’s explanation for its sentences indicates

that it sufficiently considered the totality of the § 3553(a) factors.

2.

We next address Appellants’ claim that the district court erred by failing to

adequately respond to their nonfrivolous arguments in favor of within-Guidelines

sentences. Appellant Richmond contends the district court failed to adequately address his

arguments regarding analyzing the § 3553(a) factors with respect to each individual count

pursuant to Dean v. United States, 3 his criminal history, his familial support, the lack of

prior violence in his record, and the Government’s argument based on his cooperation with

law enforcement. Appellant Evans contends the district court erred by failing to address

his arguments regarding the nature of his upbringing and his desire to accept responsibility

for his conduct and rehabilitate.

It is well established that a sentence is procedurally unreasonable if “the record fails

to make it patently obvious” that the “sentencing court truly considered the parties’

nonfrivolous arguments.” Provance,

(internal quotation marks omitted).

When evaluating the sufficiency of the district court’s engagement with particular

arguments, “we look at the full context, including the give-and-take of a sentencing

3

(2017) (holding district courts may consider the § 3553(a) factors when determining a sentence for each individual offense in a multicount case).

9 hearing.” United States v. Nance,

(4th Cir. 2020). “Where a sentencing

court hears a defendant’s arguments and engages with them at a hearing, we may infer from

that discussion that specific attention has been given to those arguments.”

Moreover,

when a district court fully addresses an argument’s “central thesis,” the district court is “not

also required to address separately each supporting data point marshalled on its behalf.”

.

We find no reversible error in the manner in which the district court responded to

each Appellant’s arguments. As an initial matter, the district court had no reason to

specifically address any argument based on Dean v. United States or Appellant Richmond’s

claims of his overstated criminal history because at the sentencing hearing, Appellant

Richmond conceded those arguments. See J.A. 217 (“I’m not arguing Dean.”); see also

(stating that although Appellant Richmond “could . . . argue . . . his criminal

history is overstated . . . [he was] not asking Your Honor to depart from a criminal history

V to a IV” (emphasis supplied)). Moreover, regarding Appellant Richmond’s argument as

to the lack of violence on his criminal record, the district court simply disagreed with

Appellant Richmond that his criminal history did not include any violent crimes.

(The court: “I don’t know that I want to characterize the prior convictions as just property

offenses.”). Additionally, the district court explicitly observed that the Government argued

for a within-Guidelines range because of Appellant Richmond’s cooperation. And the

district court went on to state it was “going to consider that” fact when issuing Appellant

Richmond’s sentence.

. Finally, although the district court should have

responded to Appellant Richmond’s argument regarding his familial support, failing to do

10 so was not reversible error because Appellant Richmond failed to demonstrate any

extraordinary familial circumstances. Cf. United States v. Martin,

(1st Cir.

2008) (“A district court therefore may take idiosyncratic family circumstances into

account . . . .” (emphasis supplied)); see also United States v. Boulware,

,

839–40 (4th Cir. 2010) (explaining that any error stemming from the district court’s failure

to consider a party’s arguments is harmless where the arguments are “very weak”).

Regarding Appellant Evans, while it is true the district court did not specifically

address his personal statement that expressed remorse and a desire to change when it

announced his sentence, the court sufficiently engaged the statement at the sentencing

hearing, so “we may infer from that discussion that specific attention [was] given” to that

point. Nance,

. Indeed, the district court responded to Appellant Evans’s

personal statement, stating, “I’ll take into consideration what you have said,” and “I hope

you’ll do what you say. I hope you’ll stay out of trouble.” J.A. 246.

Appellant Evans’s remaining arguments regarding his sentencing memorandum and

the Guidelines’ lack of credit for acceptance of responsibility in cases where a defendant

has only been convicted of § 924(c) offenses share the same “central thesis” as his personal

statement. Nance,

. Namely, that Appellant Evans expressed remorse for

his conduct as well as a desire to change. Therefore, we are satisfied that these points were

also sufficiently addressed during the “give-and-take of [the] sentencing hearing.”

.

11 3.

Finally, Appellant Richmond argues the district court committed procedural error

by justifying an above-Guidelines sentence based in part on a mistake. Specifically,

Appellant Richmond claims the district court’s observation that he had charges dismissed

as a result of his plea agreement and “had he been convicted on all of the counts, [the

Guideline range] would have been substantially higher” was incorrect. J.A. 234. While

Appellant is correct that the Government only dismissed one charge pursuant to the terms

of Appellant Richmond’s plea agreement and that even if the charge had not been

dismissed, his advisory Guidelines range would have been no different, to the extent the

district court was mistaken on these facts, we conclude that it was not reversible error.

To begin with, we review this specific contention pursuant to a plain error standard

because Appellant Richmond failed to object to the district court’s factually and legally

inaccurate statement about his plea agreement. See United States v. Hargrove,

(4th Cir. 2010) (“[I]n the absence of proper preservation, plain-error review

applies.”). Accordingly, Appellant Richmond “must establish that the . . . error was plain,

and that it affected his substantial rights.” United States v. Robinson,

(4th Cir. 2010) (internal quotation marks omitted). Such errors are only “corrected where

not doing so would result in a miscarriage of justice or would otherwise seriously affect

the fairness, integrity[,] or public reputation of judicial proceedings.”

(internal

quotation marks omitted).

Here, Appellant Richmond fails to demonstrate such error. First, the district court

noted that it was concerned not only about charges that were brought and subsequently

12 dismissed pursuant to the plea agreement but also about charges that could have been

brought against Appellant Richmond but were not pursued in the first instance. Thus, the

district court was not exclusively concerned with the dismissed charges; it was also inclined

to vary upward given the unpursued criminal charges. Moreover, when the sentencing

hearing is viewed in its full context, it is clear that uncharged criminal activity did not play

a substantial role in the sentencing decision. As noted at the outset of the procedural

reasonableness analysis, the district court was particularly moved by the serious and violent

nature of Appellants’ underlying criminal offenses as well as the need for deterrence.

Indeed, prior to making the statement Appellant Richmond claims was error, the district

court emphasized “the nature and the circumstances of the offense.” J.A. 233 (“The

conduct is clear here. Violent Crime, violent offenses, no question about that.”); see also

id. at 235 (noting “there has to be deterrence in this case” and “the protection of the public

is a factor here”).

Thus, even if assumed inaccurate, we conclude that the district court’s statements

did not amount to an infringement on Appellant Richmond’s substantial rights or a

miscarriage of justice.

B.

Substantive Reasonableness

After determining the sentences here are procedurally reasonable, we turn to

substantive reasonableness. See Nance,

. Substantive reasonableness

review “takes into account the totality of the circumstances to determine whether the

sentencing court abused its discretion.”

(internal quotation marks omitted). Notably,

13 “[e]ven if ‘the sentence is outside the Guidelines range, the court may not apply a

presumption of unreasonableness. It may consider the extent of the deviation, but must give

due deference to the district court’s decision that the § 3553(a) factors . . . justify the extent

of the variance.’” Id. (quoting Gall,

). Nonetheless, the further a district

court diverges from the advisory Guidelines range, “the more compelling the reasons for

the divergence must be.” United States v. Hampton,

(4th Cir. 2006).

Appellants first challenge the substantive reasonableness of their sentences by

repeating their claims regarding the district court’s focus on the nature of the crime

committed. This argument fails because in this Circuit we frame that issue as one of

procedural reasonableness. See Lymas, 781 F.3d at 112–13. And we have already held

that the sentences were procedurally reasonable because the district court gave all of the §

3553(a) factors due consideration.

Next, Appellants claim the district court erred by justifying its upward variances

based on the serious nature of the underlying conduct because Congress and the Sentencing

Commission already had the nature of the conduct in mind when establishing Guidelines

ranges for § 924(c) convictions. But once again, this argument fails because we disagree

with its assumed premise. Specifically, we concluded the district court’s decision to vary

upward was not based solely on a consideration of the nature of the underlying conduct, as

discussed above. Moreover, “district courts have extremely broad discretion when

determining the weight” of each § 3553(a) factor. Nance,

.

Finally, Appellants argue the district court failed to adequately explain why it varied

further from the Guidelines range for Appellant Evans’s sentence than for Appellant

14 Richmond’s. But a fulsome review of the sentencing hearing reveals that the district court

did not impose identical upward variances because it did not believe Appellants played

identical roles in the underlying offenses. Indeed, throughout the hearing, the district court

asked counsel for Appellants and the Government to “distinguish the conduct of

[Appellant] Evans in [the underlying] offenses from the conduct of others.” J.A. 247.

Through these discussions, the district court reasonably concluded that Appellant Evans

played a more central and violent role in the carjackings than Appellant Richmond. Thus,

the district court expressly relied on distinctions in conduct to justify the distinction in the

variant sentences. For these reasons, we conclude that Appellants’ sentences are not

substantively unreasonable.

IV.

For the foregoing reasons, the judgments of the district court are

AFFIRMED.

15