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United States v. Damien Evans, 4th Cir. (2015)
United States v. Damien Evans, 4th Cir. (2015)
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4773
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:13-cr-00050-FL-1)
Submitted:
Decided:
PER CURIAM:
Damien
agreement,
Antwon
to
Evans
pled
possession
of
guilty,
pursuant
firearm
and
to
plea
ammunition
by
court
sentenced
Evans
to
188
months
imprisonment,
the
as
potential
issues
whether
the
court
abused
its
various
aspects
of
Evans
sentence
were
erroneous,
of
4B1.4(b)(3)(A)
U.S.
(2013),
Sentencing
and
the
denial
Guidelines
of
the
Manual
motion
for
We affirm.
review
district
courts
ruling
on
motion
to
United States v.
Three factors
(1)
Id.
(internal
quotation
marks
omitted).
These
F.3d
189,
omitted).
191
We
(4th
conclude
Cir.
that
2011)
the
(internal
court
quotation
did
not
marks
abuse
its
discretion, since Evans motion was made after the start of the
sentencing
hearing,
the
court
inquired
into
the
reasons
for
and
the
record
provides
no
evidence
of
an
attorney-
an
armed
career
criminal
was
proper.
When
considering
United States v.
McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135
S. Ct. 942 (2015).
Henderson
is
subject
924(e)(1) (2012).
to
an
enhanced
sentence.
18
U.S.C.
than
year.
These
robbery
counts
constitute
violent
(4th Cir.
Carolina
law
is
crime
of
violence).
Accordingly,
we
Here, the
under
North
4
Carolina
law,
the
sentencing
court
was
required
aggravating
141.5(b)
factors
to
find
the
enumerated
in
presence
the
of
two
statute.
or
Id.
more
20-
Evans
factors.
Thus,
offered
the
no
courts
evidence
factual
to
dispute
findings
these
two
Evans
was
that
Id.
offense
under
federal
or
state
law,
punishable
by
that
presents
injury to another.
aggravating
factors,
serious
potential
USSG 4B1.2(a)(2).
Evans
actions
risk
of
physical
constituted
the
state
2267, 2277 (2011); see also United States v. Scott, 521 F. Appx
112, 114 (4th Cir. 2013) (per curiam) (holding that fleeing to
elude arrest under N.C. Gen. Stat. 20-141.5 constitutes crime
of violence for purposes of USSG 4B1.4(b)(3)(A)). Therefore,
the district court correctly concluded that Evans committed a
crime
of
firearm,
violence
meriting
in
connection
application
of
with
an
his
possession
offense
level
of
of
34
a
as
provided by 4B1.4(b)(3)(A).
Finally, counsel questions whether Evans sentence of 188
months
imprisonment
was
reasonable,
focusing
specifically
on
whether the court erred when it denied the motion for downward
departure
and/or
variance.
We
apply
an
abuse-of-discretion
courts
sentence
for
Gall v.
significant
procedural
error,
factors,
selecting
sentence
based
on
clearly
Id.
circumstances.
Id.
The
sentence
imposed
must
be
goals of sentencing.
18 U.S.C. 3553(a).
We presume on appeal
conclude
procedural
that
the
requirements
Guidelines
range;
allocution,
and
district
by
considering
the
court
correctly
the
3553(a)
Id.
satisfied
calculating
parties
factors;
Evans
arguments,
and
the
Evans
providing
an
As
rebut
the
presumption
within-Guidelines
of
sentence.
reasonableness
accorded
to
As
by
courts
indicated
the
his
warranted
sentence
at
the
bottom
of
the
Such
also
contends
ineffective.
conclusively
appears
that
Unless
on
the
sentencing
an
face
counsels
attorneys
of
the
assistance
ineffectiveness
record,
ineffective
United
States
v.
Smith,
640
F.3d
580,
587
(4th
Cir.
2011)
appellate
court
need
not
look
beyond
the
trial
court
United
States
2010).
v.
Baptiste,
596
F.3d
214,
216
n.1
(4th
Cir.
the
right
to
petition
the
Supreme
Court
of
the
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED