United States v. Jon Clements

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15-4264

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JON PAUL CLEMENTS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:14-cr-00174-1)

Submitted: January 28, 2016 Decided: February 16, 2016

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas J. Gillooly, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, Monica D. Coleman, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jon Paul Clements pled guilty, without a plea agreement, to

four counts of distributing heroin, in violation of 21 U.S.C.

§ 841(a)(1) (2012). The district court sentenced him, as a

career offender, to 168 months’ imprisonment, the bottom of the

advisory Sentencing Guidelines range. Clements timely appealed

his sentence. For the reasons that follow, we affirm.

We review Clements’ sentence for reasonableness “under a

deferential abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 41 (2007). Such review entails appellate

consideration of both the procedural and substantive

reasonableness of the sentence. Id. at 51. In determining

procedural reasonableness, we evaluate whether the district

court committed significant procedural error, such as improperly

calculating the advisory Guidelines range, failing to

appropriately consider the 18 U.S.C. § 3553(a) (2012) factors,

or selecting a sentence based on clearly erroneous facts. Id.

at 49-51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).

If we find no procedural error, then we examine the

substantive reasonableness of the sentence under “the totality

of the circumstances.” Gall, 552 U.S. at 51; United States v.

Howard, 773 F.3d 519, 528 (4th Cir. 2014). The sentence imposed

must be “sufficient, but not greater than necessary,” to satisfy

2 the goals of sentencing. See 18 U.S.C. § 3553(a). We presume

on appeal that a within- or below-Guidelines sentence is

substantively reasonable. United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014). The

defendant bears the burden to rebut this presumption “by showing

that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.” Id. When reviewing for substantive

reasonableness, this court “can reverse a sentence only if it is

unreasonable, even if the sentence would not have been the

choice of the appellate court.” United States v. Yooho Weon,

722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks

omitted).

Clements contends that his sentence is unreasonable because

the court failed to properly weigh the § 3553(a) factors by

taking into account his history and characteristics, and

impermissibly considered dismissed and acquitted conduct when

sentencing him. We disagree.

In fashioning Clements’ sentence, the district court

addressed the 18 U.S.C. § 3553(a) sentencing factors.

Specifically, the court noted that while Clements’ offenses

involved only a small quantity of heroin, this drug, along with

pills, was a serious law enforcement problem in southern West

Virginia, and that Clements’ “sentence need[ed] to send the

message of deterrence to others who are involved in trafficking

3 any kind of drugs but, in particular, heroin and pills.” The

court also noted Clements’ “significant” criminal history and

found that a sentence within the career offender Guidelines

range was appropriate and necessary to deter Clements from

engaging in crime and to protect the public from his criminal

activity. All of these considerations by the court speak

directly to several § 3553(a) factors. See 18 U.S.C.

§ 3553(a)(1) (“the nature and circumstances of the offense and

the history and characteristics of the defendant”); 18 U.S.C.

§ 3553(a)(2)(A) (“the need for the sentence . . . to reflect the

seriousness of the offense, to promote respect for the law, and

to provide just punishment”); 18 U.S.C. § 3553(a)(2)(B) (the

need to deter criminal conduct); 18 U.S.C. § 3553(a)(2)(C) (the

need “to protect the public from further crimes of the

defendant”).

Turning to Clements’ claim that the district erroneously

considered dismissed and acquitted charges, read in context, the

district court mentioned these events in responding to Clements’

request for a below-Guidelines sentence. During his allocution,

Clements apologized, stating that he accepted responsibility for

his actions and was trying to support his family. Remarking

that actions carried more weight than words, the court noted

Clements’ dismissed federal charges from 2010 and 2014, and

observed that, within a month after being released following his

4 acquittal on another federal charge in 2014, Clements pled

guilty to a state drug charge, and the next month had resumed

selling drugs. The court found that Clements’ actions

demonstrated that he had learned nothing from his experience

with the criminal justice system and, therefore, a within-

Guidelines sentence was appropriate. Thus, the court considered

the acquitted and dismissed conduct only in the context of

rejecting Clements’ request for a below-Guidelines sentence.

As to Clements’ claim that the district court failed to

take into account his history and characteristics, specifically

his difficult childhood and the lengthy gap between his 2011

career offender predicate offenses and his current crimes,

“district courts have extremely broad discretion when

determining the weight to be given each of the § 3553(a)

factors.” United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.

2011). The record reflects that the district court “considered

the parties’ arguments and ha[d] a reasoned basis for exercising

[its] own legal decisionmaking authority.” United States v.

Avila, 770 F.3d 1100, 1108 (4th Cir. 2014) (second alteration in

original; internal quotation marks omitted).

We conclude that Clements has failed to rebut the

presumption of reasonableness accorded his within-Guidelines

sentence. The court clearly considered the § 3553(a) factors,

offered a reasoned explanation for the sentence it imposed, and

5 explained its basis for rejecting Clements’ arguments for a

lesser sentence. Rita v. United States, 551 U.S. 338, 356

(2007). The fact that Clements disagrees with the district

court does not render his sentence unreasonable. Cf. Yooho

Weon, 722 F.3d at 590.

Finally, Clements contends that the district court erred by

denying as moot his challenge to the assessment of two criminal

history points, rather than one, for his 2014 West Virginia

conviction for possession with intent to deliver marijuana. The

criminal history point in question did not affect Clements’

criminal history score because he was sentenced as a career

offender. Therefore, the district court did not err by

concluding that Clements’ challenge was moot.

Accordingly, we affirm Clements’ sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

6