Académique Documents
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No. 07-4953
COUNSEL
ARGUED: Russell Warren Mace, III, Myrtle Beach, South
Carolina, for Appellant. Rose Mary Sheppard Parham,
OFFICE OF THE UNITED STATES ATTORNEY, Florence,
South Carolina, for Appellee. ON BRIEF: Kevin F. McDon-
OPINION
NIEMEYER, Circuit Judge:
After pleading guilty to being a felon in possession of a
firearm, Harry Ronald Seay was sentenced to 96 months
imprisonment. Challenging his sentence on appeal, Seay contends (1) that his prior felony stalking conviction under North
Carolina General Statutes 14-277.3 (1999) is not a "crime of
violence" justifying an enhanced offense level under United
States Sentencing Guidelines 2K2.1; (2) that the district
court erred in admitting, during the sentencing proceeding, a
threat-assessment report and threat-assessment testimony
given by a law enforcement officer; and (3) that the district
court abused its discretion in imposing a variance sentence
above the advisory range of the Sentencing Guidelines.
For the reasons given herein, we reject each argument and
affirm. We hold that felony stalking under North Carolina law
is a crime of violence as defined in 4B1.2(a) of the Sentencing Guidelines. We also conclude that any error that the district court may have committed in admitting the threatassessment report and testimony at sentencing was harmless
because the evidence was cumulative and the district court did
not give significant weight to the report and testimony. And
finally, we conclude that the district courts variance sentence
was not unreasonable.
I
After South Carolina law enforcement officers stopped
Harry Seay in September 2005 for speeding, they determined
Id. Thus, the statute can be violated with either of two specific
intents. It is violated if the defendant has "the intent to cause
death or bodily injury" to the victim or if the defendant has
"the intent to cause emotional distress by placing that person
in reasonable fear of death or bodily injury." Id. Because the
statute criminalizes more than one type of conduct, we may
look beyond the statutory language to the actual charging document controlling the defendants conviction to understand
the nature of the offense. See United States v. Kirksey, 138
F.3d 120, 124 (4th Cir. 1998). In this case, the indictment
charged Seay with "unlawfully, willfully and feloniously . . .
on more than one occasion follow[ing] and . . . [being] in the
presence of another person . . . without legal purpose and with
the intent to cause emotional distress by placing this person
in reasonable fear of bodily injury."
Seay argues that the elements of North Carolinas felony
stalking "did not require that a defendant make a credible
threat to the victim. . . . Conduct intended to cause another
reasonable fear of bodily injury does not naturally include the
threatened use of physical force," as required by U.S.S.G.
4B1.2(a)(1). This argument, however, dismisses too quickly
the elements of the offense.
First, to be guilty under the statute, Seays conduct had to
be "willful," a requirement that distinguishes his conduct from
negligent or accidental conduct. Second, Seay had to be guilty
of willfully stalking "on more than one occasion." Third, he
had to be found "follow[ing] or [being] in the presence of" his
victim, placing his victim "in . . . fear of . . . bodily injury."
Fourth, his conduct had to be sufficiently egregious to have
placed a "reasonable" person in such fear. See State v. Ferebee, 529 S.E.2d 686, 690 (N.C. Ct. App. 2000) (interpreting
"reasonable fear" in the 1993 version of the statute and
instructing trial courts "to ensure that an objective standard,
based on what frightens an ordinary, prudent person under
the same or similar circumstances, is applied rather than a
subjective standard which focuses on the individual victims
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IV
Finally, Seay contends that his sentence of 96 months
imprisonment is unreasonable. He notes that the Sentencing
Guidelines called for a sentencing range of 46 to 57 months
imprisonment, and the district courts upward variance of five
levels resulted in a Guidelines range of 77 to 96 months
imprisonment, a 68% increase above the original range. Seay
argues that the district court inadequately explained its reasoning for sentencing Seay outside the Guidelines range and
placed undue weight on 18 U.S.C. 3553(a)(2)(C), which
requires that the district court impose a sentence that
"protect[s] the public from further crimes of the defendant."
We review the district courts sentence for reasonableness
under an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586 (2007). Under Gall, we must first "ensure that
the district court committed no significant procedural error."
Id. at 597. Then we must "consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard[,] . . . tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. When reviewing sentences under this
standard, we have recognized that the sentence imposed "may
not be the only reasonable sentence," but it must be "a reasonable sentence." United States v. Evans, 526 F.3d 155, 166 (4th
Cir. 2008). Gall specifically directs that "any reasonable sentence be upheld." Id.
In this case, there was no procedural error, and the district
court properly calculated the Guidelines range. The court
allowed both parties to present evidence during the sentencing
proceedings, considered the 3553(a) factors, and extensively
explained its reasoning for the variance. The court explained
that it based its variance on 3553(a)(1), the "nature and circumstances of the offense and the history and characteristics
of the defendant," and 3553(a)(2)(C), "the need for the sentence imposed . . . to protect the public from further crimes
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