UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4590

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RUSSELL JAVON LINNEY,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Max O. Cogburn, Jr., District Judge. (5:13-cr-00065-MOC-DCK-1)

Submitted: August 20, 2021 Decided: September 28, 2021

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Anthony Martinez, Federal Public Defender, Jared P. Martin, Assistant Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Russell Linney appeals his sentence of 96 months in prison and three years of

supervised release for possessing a firearm after a felony conviction in violation of

(g)(1). Because Linney’s sentence was reasonable and the district court

committed no procedural error, we affirm.

In August 2013, Linney, along with two associates, “engaged in a crime spree that

started with a pair of burglaries and ended with a high-speed police chase.” United States

v. Linney,

(4th Cir. 2016). When the police eventually apprehended

Linney, they learned that he had been in possession of a 9-mm handgun and they found a

9-mm magazine clip in his pocket. See

Linney had stolen the handgun in a burglary the

previous day. See J.A. 96.

This was not Linney’s first brush with the law. In fact, he had previously been

convicted of more than thirty-six different crimes, including for a series of approximately

two dozen burglaries that had harmed “31 different victims.” Linney,

; see

also J.A. 99–111. In one such burglary he stole almost $50,000 in jewelry. See J.A. 110.

In another, he stole over $300,000 in computers and jewelry. See J.A. 107. Linney’s

multiple felony convictions prohibited him from possessing a firearm under federal law

and he pleaded guilty to one count of possessing a firearm after a felony conviction in

violation of

(g)(1).

2 As Linney had three prior convictions for second-degree burglary, the district court

concluded that the Armed Career Criminal Act (ACCA) applied, under which the

Guidelines range was 188 to 235 months of incarceration. The district court sentenced

Linney to 235 months’ imprisonment and we affirmed, concluding that the sentence was

substantively reasonable and that the record did not contradict the district court’s

determination that the ACCA applied. See Linney,

.

Five months later, however, Linney moved to vacate his sentence under

, arguing that newly discovered state court documents demonstrated that two of the

predicate burglaries in fact had occurred on the same occasion and that he was therefore

ineligible for an ACCA sentencing enhancement. The district court refused to relitigate the

validity of Linney’s initial sentencing, holding that the documents could have been

discovered “through reasonable investigation” and that the claim was therefore barred by

the law-of-the-case doctrine. Linney v. United States,

, at *7 (W.D.N.C.

May 21, 2019). Nonetheless, the court vacated Linney’s sentence, finding that the initial

sentence exceeded the statutory maximum that would have applied without the ACCA

enhancement.

Before resentencing, Linney’s advisory Guidelines range was recalculated, this time

under the 2018 Guidelines Manual rather than the 2013 Guidelines Manual. Incidentally,

this ensured that the negligence of Linney’s counsel proved a windfall to Linney. Had

Linney raised the state court documents in his initial sentencing, the 2013 Guidelines

Manual would have prescribed a Guidelines range of 84 to 105 months absent the ACCA

3 enhancement. See S.J.A. 90. Since the 2018 Guidelines Manual does not classify burglary

as a crime of violence, however, Linney faced a Guidelines range of only 46 to 57 months

in prison. See J.A. 127. In addition, the Guidelines advised a term of one to three years of

supervised release. See J.A. 127.

At the resentencing hearing, Linney requested a sentence of time served, or 77

months in prison, contending that he had rehabilitated himself in prison, would be assisted

on release by a supportive community, and would have opportunities for employment. The

district court engaged in a dialogue with defense counsel at this point, expressing

skepticism as to whether good behavior on release would be sufficiently certain given

Linney’s lengthy criminal history. See J.A. 53–67. The government by contrast requested

the statutory maximum sentence of 120 months, citing Linney’s extensive criminal record

and the seriousness of his crimes, as well as several disciplinary infractions that Linney

had sustained during his time in prison. After hearing these arguments, the court concluded

that it would choose a “middle ground” and sentenced Linney to 96 months in prison. J.A.

76. In addition, the court sentenced Linney to a three-year term of supervised release.

Without objection, it ordered that Linney comply with the standard conditions of

supervised release adopted in the Western District of North Carolina.

Linney appealed, contending that: (1) the district court procedurally erred by failing

to consider Linney’s non-frivolous arguments and by failing to justify its above-Guidelines

sentence; (2) the sentence imposed was substantively unreasonable; and (3) the district

4 court erred by failing to explain its term of supervised release as well as two of the

discretionary conditions of supervised release that it imposed.

Linney first argues that the district court committed procedural error by failing to

adequately respond to Linney’s nonfrivolous arguments for time served. In particular,

Linney argues that the district court failed to address his youth and immaturity at the time

of his offense, his subsequent growth and rehabilitation, and the employment goals and

opportunities that he would have upon being released. We reject this challenge because the

district court carefully responded to Linney’s arguments and took pains to explain its

sentence.

It is true of course that “the sentencing judge should articulate enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States,

(2007). This standard requires that the district judge give thoughtful consideration of

the arguments presented by the parties. “But this admonition focuses on the whole of a

defendant’s argument and does not require the court to address every argument a defendant

makes.” United States v. Arbaugh,

(4th Cir. 2020). If we are persuaded

that the judge has considered the arguments below and has provided a reasoned basis for

accepting or rejecting them, that is enough. We are persuaded here.

5 Throughout the resentencing hearing, the district court engaged with defense

counsel, responding to each of the arguments raised for a lower sentence and explaining

why it chose not to credit them. When counsel argued that Linney had committed all of his

crimes at a young age and had since matured in prison, the court responded that those

factors were speculative as it was “difficult to know where somebody is now” and that it

was “very, very difficult to know” whether a person’s attitude had in fact changed during

their time in prison. J.A. 60. When counsel argued that Linney’s community support and

employment opportunities would assist in his rehabilitation, the court noted that such

support had not deterred Linney from his previous criminal conduct. See J.A. 55 (“It hasn’t

worked for him so far. He is just out running around with guns, driving cars, breaking in

places and running from the law.”); J.A. 77 (“Mr. Linney you’re good at—you can play

multiple instruments, but instead of doing that you decided to go out and break into

homes.”). And throughout, the court emphasized the problem of Linney’s past recidivism

and the seriousness of his past conduct. See, e.g., J.A. 53, 55, 66, 77.

In short, the district court acknowledged and considered Linney’s arguments that he

had committed the crime at a young age, that he had matured during his time in prison, and

that he would be well-suited for rehabilitation upon release. But it was reluctant to credit

these arguments, given Linney’s long history of recidivism and the difficulties of

extrapolating from Linney’s attitude in prison to his behavior upon release. The district

court was entitled to reach that conclusion and it did so in a sufficiently transparent manner

to convince us that it had a reasoned basis for imposing the sentence that it chose.

6 Given the district court’s engagement with each of Linney’s arguments, Linney’s

challenge boils down instead to the claim that the court should have responded to individual

statements made at resentencing. For instance, Linney suggests the court failed to consider

a specific report by the United States Sentencing Commission on youthful offenders, failed

to address the contents of some of Linney’s letters of support, and did not reference

Linney’s specific job opportunities upon release. These arguments fall flat. As we have

said before, “[w]here a sentencing court hears a defendant’s arguments and engages with

them at a hearing, [this Court] may infer from that discussion that specific attention has

been given to those arguments.” United States v. Nance,

(4th Cir. 2020).

The court need not respond seriatim to every statement made by defense counsel. See

Arbaugh,

.

Linney also argues that the district court committed procedural error by failing to

adequately justify its above-Guidelines sentence and by not adhering to this court’s

departure framework. But the court never characterized its sentence as an upward

departure; rather, the court repeatedly made clear that the sentence was an upward

variance. See J.A. 78–79. And the court explained why the § 3553(a) factors justified a

variance. It referenced “the type of criminal record, and the seriousness of the matters” as

well as the “complete recidivism of Linney,” and emphasized the need to “deter[] others

who think that breaking into homes is okay in North Carolina.” J.A. 74. The court

determined that the Guidelines did not adequately address the “seriousness, the recidivism”

7 and “the sheer numbers” of Linney’s past offenses, and hence that an upward variance was

warranted. J.A. 79.

Nonetheless, the court refrained from imposing the maximum sentence. It

concluded that doing so as a “knee-jerk reaction” would be inappropriate and it settled on

“some middle ground that can take care of this matter with regard to this defendant, and

will promote respect for the law” but also “provide just punishment for this offense.” J.A.

75–76; see also J.A. 79. Such individualized consideration is just what we require at

sentencing and easily satisfies the district court’s responsibility to “adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the perception of

fair sentencing.” Gall v. United States,

(2007). We therefore find no

procedural error with the sentence imposed.

Next, Linney contends that his sentence was substantively unreasonable because the

district court placed too much weight on his past criminal history. But district courts have

“extremely broad discretion” in determining how to weigh the § 3553(a) factors, United

States v. Jeffery,

(4th Cir. 2011), and “the fact that a ‘variance sentence

deviates,’ even ‘significantly,’ from the Guidelines range ‘does not alone render it

presumptively unreasonable,’” Nance,

(quoting United States v. Rivera-

Santana,

(4th Cir. 2012)). It was no abuse of discretion for the district

court to conclude that Linney’s extensive criminal history—including a long list of serious

8 offenses that victimized a host of people—justified an above-Guidelines sentence. Indeed,

we previously concluded that Linney’s initial sentence of 235 months—over twice as long

as his current sentence—was substantively reasonable given that “Linney harmed 31

different victims during his many offenses; that Linney’s most recent pair of burglaries

ended with a dangerous police chase; and that Linney appeared to be the leader in at least

this latest chapter of his long history of criminal activity.” Linney,

. And

had Linney been resentenced under the 2013 Guidelines Manual, which would have

applied had his counsel diligently discovered the state court documents, he would have

faced a Guidelines range of 84–105 months, which squarely includes the 96-month

sentence imposed here. We therefore reject Linney’s argument that his sentence was

substantively unreasonable.

Finally, Linney challenges his three-year term of supervised release, as well as two

of the discretionary conditions of supervised release. Linney argues first that the court

failed to consider the § 3553(a) factors before imposing its three-year term. But “a court’s

sentencing rationale . . . can support both imprisonment and supervised release.” United

States v. Aplicano-Oyuela,

(4th Cir. 2015). A district court is not

required to “conduct two § 3553(a) analyses, one related to the term of imprisonment and

a second related to the term of supervised release.” Id. (quoting United States v. Clark,

(3rd Cir. 2013)). Since the court’s § 3553(a) analysis was more than adequate

9 for Linney’s sentence as a whole, the court need not have separately analyzed those factors

before imposing the term of supervised release.

Linney also challenges two conditions of his supervised release. Condition #16

provides that Linney “shall not associate with any persons engaged in criminal activity,

and shall not associate with any person convicted of a felony unless granted permission to

do so by the probation officer.” J.A. 88. Condition #17 provides that Linney “shall submit

his person, residence, office, vehicle and/or any computer system . . . to a search, from time

to time, conducted by any U.S. Probation Officer and such other law enforcement

personnel as the probation officer may deem advisable, without a warrant.” J.A. 88. Linney

must also “warn other residents or occupants that such premises or vehicle may be subject

to searches pursuant to this condition.” J.A. 88.

Since Linney failed to object to these conditions at his resentencing hearing, plain-

error review applies. See Holguin-Hernandez v. United States,

(2020).

But even on abuse-of-discretion review, we would not sustain Linney’s challenge. In

United States v. Boyd,

(4th Cir. 2021), we recently spoke to the validity of

conditions of supervised release. There, we vacated several such conditions where the

defendant had filed written objections and the district court imposed the conditions without

addressing those objections. See

, 557–58. Nonetheless we recognized that “a

court’s overarching explanation of a sentence ‘as a whole’ may be procedurally sufficient

in some cases.”

at 559 (quoting United States v. Huntley,

(4th

Cir. 2014) (per curiam)). In particular, where “the reasons for a given condition are ‘self-

10 evident,’ and a defendant fails to raise nonfrivolous objections, a ‘sentence-as-a-whole’

explanation can suffice.”

(quoting United States v. McMiller,

(4th

Cir. 2020)).

Such is the case here. Linney committed a series of burglaries with the assistance of

other individuals, in some instances stealing hundreds of thousands of dollars’ worth of

valuables. Condition #16 prevents Linney from associating with other felons and thus from

committing future burglaries, while condition #17 also deters such burglaries by preventing

Linney from concealing stolen goods and valuables. The conditions are thus obviously tied

to deterring Linney from resuming his criminal activity upon release and are sufficiently

supported by the court’s explanation of Linney’s sentence as a whole.

Finally, we reject Linney’s argument that the supervised release conditions violate

his constitutional rights. While Linney argues that he might violate condition #16

inadvertently, the “general rule” is that “probationers may not be punished for inadvertent

violations.” United States v. Van Donk,

(4th Cir. 2020). And while

Linney argues that condition #17 permits unconstitutional searches, the Supreme Court has

made clear that a warrantless search of a person on supervised release is not

unconstitutional. See Samson v. California,

(2006). We therefore affirm

the term of supervised release and the conditions imposed by the district court.

***

We decline Linney’s invitation to disrupt the sentencing decisions of the district

court. That court thoroughly engaged with the arguments raised by defense counsel and

11 imposed a reasonable sentence in light of Linney’s lengthy criminal history. Likewise, the

court committed no error in imposing the term of supervised release or the discretionary

conditions of supervised release that it chose. The judgment of the district court is

AFFIRMED.

12