USCA4 Appeal: 23-4393 Doc: 33 Filed: 12/23/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4393

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHAWN CREWS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:22-cr-00105-D-KS-1)

Submitted: September 30, 2024 Decided: December 23, 2024

Before GREGORY, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: G. Alan Dubois, Federal Public Defender, Andrew DeSimone, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, John L. Gibbons, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4393 Doc: 33 Filed: 12/23/2024 Pg: 2 of 5

PER CURIAM:

Shawn Crews pled guilty, without a plea agreement, to three counts of distribution

of a quantity of cocaine, in violation of

(a)(1), (b)(1)(C). The district court

sentenced Crews to a total term of 46 months’ imprisonment. On appeal, Crews argues

that the district court violated his due process rights and abused its discretion at sentencing

by refusing to admit polygraph evidence he proffered in opposition to a sentencing

enhancement without hearing Crews’s argument or evidence as to the polygraph’s

reliability and instead relying on other, undisclosed evidence to find the polygraph

unreliable. We affirm.

In general, “[w]e review the reasonableness of a sentence under

(a)

using an abuse-of-discretion standard, regardless of whether the sentence is inside, just

outside, or significantly outside the Guidelines range.” United States v. Nance,

(4th Cir. 2020) (internal quotation marks and brackets omitted). In determining

procedural reasonableness, this Court considers whether the district court properly

calculated the defendant’s Guidelines range, gave the parties an opportunity to argue for

an appropriate sentence, considered the § 3553(a) factors, and sufficiently explained the

selected sentence. Gall v. United States,

(2007). If a sentence is free

of “significant procedural error,” we review the sentence for substantive reasonableness.

.

The Fifth Amendment requires that no person be deprived of liberty without due

process of law. U.S. Const. amend. V. “Due process may be violated in sentencing by the

use of inaccurate information” or “by sentencing on information whose accuracy a

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defendant has not had a fair opportunity to challenge.” United States v. Inglesi,

(4th Cir. 1993). In the context of sentencing enhancements, these principles mean

that a defendant must receive notice of the enhancement so that he has “an opportunity to

contest the validity or applicability of the [grounds] upon which the . . . enhancement is

based.” United States v. Hodge,

(4th Cir. 2018) (internal quotation

marks and brackets omitted).

A district court must disclose any information on which it will rely in fashioning a

sentence and give the parties a “reasonable opportunity to comment on that information.”

Fed. R. Crim. P. 32(i)(1)(B). Additionally, the court “must allow the parties’ attorneys to

comment on the probation officer’s determinations and other matters relating to an

appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C). As part of the sentencing proceedings,

“[t]he court may permit the parties to introduce evidence on the objections.” Fed. R. Crim.

P. 32(i)(2).

As a general principle, “[n]o limitation shall be placed on the information . . . a

court . . . may receive and consider for the purpose of imposing an appropriate sentence.”

. However, the proffered evidence must have “sufficient indicia of

reliability to support its probable accuracy.” United States v. Roy,

(4th

Cir. 2023) (internal quotation marks omitted). A district court’s “determination that

evidence is sufficiently reliable is reviewed for an abuse of discretion.” United States v.

Kokinda,

(4th Cir. 2024), petition for cert. filed, No. 24-5006 (U.S. July

1, 2024). Additionally, although “[w]e review evidentiary rulings implicating

constitutional claims de novo,” we review for abuse of discretion arguments that are

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“couched in terms of . . . due process right[s]” but “are better framed as evidentiary

arguments,” such as challenges to a district court’s refusal to admit certain evidence that it

“deems irrelevant or immaterial.” United States v. Rand,

(4th Cir. 2016)

(internal quotation marks and brackets omitted); see United States v. Malloy,

(4th Cir. 2009) (same). “A court abuses its discretion when it acts arbitrarily or

irrationally, fails to consider judicially recognized factors constraining its exercise of

discretion, relies on erroneous factual or legal premises, or commits an error of law.” Hicks

v. Ferreyra,

(4th Cir. 2023) (internal quotation marks omitted), cert.

denied,

(2024).

In accordance with these principles, the presentence report contained the

information on which the district court relied to enhance Crews’s sentence. Crews had

notice of this information, a chance to develop an argument and evidence in response to

that information, and an opportunity to be heard on the challenged enhancement at

sentencing. The court allowed Crews to present evidence on the enhancement and,

although the court rejected some of Crews’s evidence as unreliable, it still allowed defense

counsel to describe her conversations with Crews and his claims regarding the applicability

of the enhancement. The court weighed this evidence against the Government’s and

ultimately found the Government’s evidence more reliable due to various factors stated on

the record. Furthermore, the court’s decision to exclude the polygraph evidence was not

based on a per se policy against such evidence or otherwise based on erroneous factual or

legal premises, particularly given the long-standing, varied opinions about such evidence

in this and other courts. See United States v. Prince-Oyibo,

(4th

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Cir. 2003) (upholding per se ban on polygraph evidence and recognizing that “results of an

accused’s or a witness’s polygraph test are not admissible to bolster or undermine

credibility”); Ortega v. United States,

(8th Cir. 2001) (collecting

decisions upholding lower courts’ refusals to admit polygraph evidence at sentencing); see

also United States v. Scheffer,

(1998) (observing that “there is simply

no consensus that polygraph evidence is reliable”). Therefore, we conclude that the district

court’s evidentiary ruling on the issue of the polygraph evidence constituted neither an

abuse of discretion nor a violation of Crews’s due process rights.

Accordingly, we affirm the judgment of the district court. 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

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