United States of America v. Clarence Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLARENCE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:14-cr-00049-IMK-JSK-1)
Submitted: October 27, 2015 Decided: November 12, 2015
Before SHEDD and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Senior Litigator, Clarksburg, West Virginia;
Kristen Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. Shawn Angus Morgan, Assistant
United States Attorney, Clarksburg, West Virginia; David J.
Perri, Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 4 --

2
PER CURIAM:
Clarence Thompson pled guilty, without a plea agreement, to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012). The district court sentenced
Thompson to 70 months’ imprisonment. Counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal but questioning
whether Thompson’s sentence is reasonable. Thompson filed a
supplemental pro se brief, arguing that his criminal history
category was miscalculated. We affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In assessing
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Sentencing
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Gall, 552 U.S. at 49-51. If there are no procedural
errors, we then consider the substantive reasonableness of a
sentence, evaluating “the totality of the circumstances.” Id.
at 51. A sentence is presumptively reasonable if it is within

-- 2 of 4 --

3
the Guidelines range, and this “presumption can only be rebutted
by showing that the sentence is unreasonable when measured
against the 18 U.S.C. § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014).
In this case, the record establishes that Thompson’s
sentence is procedurally and substantively reasonable. Though
Thompson contends that one of his prior convictions was
erroneously assessed six criminal history points, the record
reveals that the challenged conviction was, in fact, properly
assessed three points.
We also reject the argument that Thompson’s sentence is
substantively unreasonable because the district court could have
departed from the Guidelines to account for the time he served
in state custody. We do not “review a sentencing court’s
decision not to depart unless the court mistakenly believed that
it lacked the authority to do so.” Louthian, 756 F.3d at 306.
The record makes clear that the district court knew it could
depart, but chose not to, a decision wholly within its
discretion. Finally, the court did not abuse its discretion in
declining to vary downward from the Guidelines range.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Thompson’s conviction and sentence.

-- 3 of 4 --

4
This court requires that counsel inform Thompson, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Thompson requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Thompson.
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

-- 4 of 4 --