United States v. Fowler

58 F.4th 142

UNITED STATES of America, Plaintiff – Appellee,

v.George Darrin FOWLER, Defendant - Appellant.

No. 19-4178

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2022

Decided: January 18, 2023

ARGUED: William Wharton Watkins, Sr., WILLIAM R. WATKINS, PA, Columbia, South Carolina, for Appellant. Andrew R. de Holl, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: Miller W. Shealy, Jr., MILLER SHEALY LAW FIRM, Charleston, South Carolina, for Appellant. Corey F. Ellis, United States Attorney, Adair F. Boroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge King joined.

WILKINSON, Circuit Judge:

George Darrin Fowler pled guilty to two federal weapons charges after local law enforcement executed a search warrant at his residence and discovered a multitude of firearms, ammunition, and drugs. The district court sentenced Fowler to 117 months' imprisonment, at the lowest end of his advisory Sentencing Guidelines range. Fowler's appellate counsel initially filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We ordered supplemental briefing and oral argument on two issues– (1) whether the district court plainly erred in assigning one criminal history point to Fowler's criminal domestic violence offense; and (2) whether the district court adequately explained its rejection of Fowler's nonfrivolous arguments for a downward departure or variance. For the reasons that follow, we affirm the judgment of the district court.

I.

A.

After a confidential informant purchased methamphetamine from Fowler during a controlled-buy operation, the Greenville County Sheriff's Office executed a search warrant at Fowler's residence on July 27, 2016. In total, officers recovered 21 firearms, a muzzleloader, one gram of methamphetamine, 20 grams of marijuana, and over 600 rounds of assorted ammunition. Fowler was interviewed that same day and confessed that the guns and drugs were his, that he had been selling methamphetamine for a year, and that he had obtained some of the firearms as payment for drugs.

A federal grand jury then charged Fowler with (1) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 1); (2) possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count 2); and (3) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). Fowler pled guilty without a plea agreement to Counts 2 and 3. The government voluntarily dismissed Count 1.

Following his plea, a probation officer assembled Fowler's presentence report (PSR), determining that Fowler had two prior adjudications that earned criminal history points. First was Fowler's 2003 conviction for South Carolina second-degree burglary and petty larceny, which earned three points pursuant to U.S.S.G. § 4A1.1(a). Second was a 2013 South Carolina criminal domestic violence (CDV) offense, for which a state court directed Fowler to participate in an "Addcare 26 Week Program," a domestic violence intervention program. Little else about the offense was listed in the PSR. It stated instead that "[a]ttorney representation and facts of the offense are unknown due to a ticket being issued." Joint App'x (J.A.) Vol. II at 11. The probation officer assigned Fowler one point for this offense, however, pursuant to U.S.S.G. § 4A1.1(c).

These previous adjudications resulted in a Criminal History Category III, with the point assigned to the CDV offense moving Fowler up from a Criminal History Category II. Overall, with this score and other offense-level adjustments, including a four-level enhancement for the number of firearms recovered, Fowler's advisory guidelines range was 117 to 131 months imprisonment: 57–71 months for Count 2, plus a statutorily-required 60 months for Count 3, to run consecutively.

Fowler's counsel objected initially only to certain offense-level issues in the PSR. But in a supplemental memorandum in support of a downward departure or variance, Fowler's counsel urged the district court to impose a lesser sentence. Counsel argued that the guidelines range of 57 to 71 months for Count 2 overstated the seriousness of Fowler's culpable conduct, believing that a range of 41 to 51 months was more appropriate. Counsel argued that instead of imposing a sentence in that range, Fowler should receive a five-year sentence for Count 2 to run concurrently with the mandatory minimum five-year sentence for Count 3.

In support of this request, counsel first argued that the court should depart downward to Criminal History Category II because Category III overstated the seriousness of Fowler's criminal history. He believed that the CDV offense "should not be counted due to [Fowler's] court-ordered attendance of an Addcare Program in lieu of incarceration, and due to the lack of information available regarding attorney representation and the facts of the offense." J.A. Vol. II at 28. Counsel explicitly stated, however, that "[t]he inadequacy of the information limit[ed] [Fowler's] ability to challenge the conviction's eligibility to be counted for Guideline purposes." Id.

Counsel made additional arguments to support a downward departure or variance. He argued that the base offense level of 24 for Count 2 overstated the defendant's culpability and the offense conduct, observing that (1) several of the recovered firearms were military firearms and family heirlooms that were likely inoperable; (2) Fowler had not obtained the firearms through an illegal gun market; (3) one firearm belonged to Fowler's wife; and (4) most, if not all, of the firearms were not easily accessible. Moreover, in support of his request for concurrent sentences, counsel believed that imposing consecutive sentences would subject Fowler "to disproportionate punishment," as Fowler had not "engaged in separate and distinct criminal acts that gave rise to [both charges]" since both Count 2 and 3 had "possession" as an element and the only thing distinguishing them was Fowler's prior felony conviction. Id. at 31.

Finally, counsel argued that other circumstances existed to support a variance from the 57 to 71 months range for Count 2. These included: (1) Fowler suffers from a drug addiction and would benefit from rehabilitation; (2) Fowler had a troubled childhood and early adulthood; (3) Fowler had significant familial responsibilities due to his wife having crippling rheumatoid arthritis ; (4) Fowler had strong support from family and friends; and (5) Fowler acknowledged the wrongfulness of his conduct.

B.

At sentencing, the district court confirmed that it had reviewed the plea hearing, the PSR, and defense counsel's sentencing memoranda. Fowler's counsel withdrew all of his objections to the PSR and instead sought to rely solely on his variance motion. As a result, the district court adopted the factual findings set forth in the PSR, which included Fowler's conviction for CDV.

The government urged the district court to impose a within-Guidelines sentence. Fowler's counsel requested that the district court vary downward and impose a 60-month sentence. Counsel recited the main points from his earlier motion, adding an argument about Fowler's attempted cooperation with the government.

After listening to counsel's argument on Fowler's behalf, and after hearing from Fowler and his wife, the district court considered the variance motion. The court rejected Fowler's argument that he was a mere innocent collector of firearms. The court explained that it understood Fowler "liked collecting these firearms," but it observed that he also "had a bunch of ammunition." J.A. Vol. I at 18. The court additionally reminded Fowler that he had previously admitted, and the PSR reflected, that Fowler "had been selling for methamphetamine for about a year and that some of the firearms were obtained on trades for drugs." Id. at 20.

The district court confirmed that it had "considered all of the information presented [at the hearing] and the arguments of counsel." Id. at 21. It then considered the sentencing factors listed in 18 U.S.C. § 3553(a). The court observed that Fowler's criminal history began in 1988 and that he had been convicted of many different crimes, even if most did not earn criminal history points. The court found that Fowler "clearly" has "a drug problem." Id. at 23. Addressing the seriousness of the offense, the district court found that the government had "a legitimate and compelling interest in preventing this type of activity, including drug activity and possession of firearms and ammunition by convicted felons," as "there [was] an increased opportunity for violence and injury" when "there [was] a mix of drugs and firearms." Id. at 23–24. The court also found that Fowler's "conduct in this case and the serious nature of these offenses and his prior criminal history reflect[ed] some lack of respect for the law." Id. at 24. It further remarked that Fowler's "involvement with the criminal justice system ha[d] failed to deter him from committing serious offenses" and expressed "hope[ ] that the sentence imposed" would "impact him in a positive way so as to deter future criminal conduct on his part." Id.

The district court confirmed that it had "carefully reviewed" counsel's motions for a downward departure or variance, but said that it was "going to respectfully deny those motions based on the totality of the circumstances and the application of the [§] 3553(a) factors ...." Id. at 24. Specifically, the court cited "the nature and circumstances of the offense, the history and characteristics of [Fowler], and the need for the sentence to reflect...