United States v. Joseph McCormick

Court Case Details
Court Case Opinion




No. 14-4843


Plaintiff - Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00101-WO-2)

Submitted: May 21, 2015

Decided: July 2, 2015

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Wynn and Judge Diaz joined.

Anne M. Hayes, Cary, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Greensboro, North Carolina, Graham
T. Green, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

DUNCAN, Circuit Judge:

Defendant Joseph McCormick appeals his below-guidelines 78-

month sentence for possessing stolen firearms. McCormick argues

that the district court erred in calculating his sentence by (1)

finding that the offense involved a firearm capable of accepting

a large-capacity magazine; and (2) ignoring “numerous mitigating

factors” that warrant a shorter sentence. Appellant’s Br. at

16, 23. Finding the first argument waived and the second

meritless, we affirm the district court’s sentencing order.


On June 19, 2014, McCormick pleaded guilty to one count of

possessing stolen firearms. J.A. 20-26. In September of that

year, a United States Probation Officer prepared a Pre-Sentence

Report (“PSR”), calculating a base offense level of 20--

“[b]ecause the offense involved semiautomatic firearms that are

capable of accepting a large capacity magazine”--and a total

offense level of 28. J.A. 139-40. The PSR ultimately

calculated a guidelines sentencing range of 97-–120 months and

recommended a “middle” sentence. J.A. 153. McCormick objected

“to all facts in the PSR alleging the offense involved a

semiautomatic firearm capable of accepting a large capacity

magazine within the meaning of USSG § 2K2.1(a)(4)(B).” J.A.



At McCormick’s sentencing hearing, however, his counsel

stated that McCormick was “prepared to withdraw that particular

objection.” J.A. 72. The district court asked McCormick if he

had reviewed the PSR with counsel and whether he generally

agreed with the report, apart from an unrelated outstanding

objection (which McCormick has not presented here). J.A. 73.

McCormick answered affirmatively. Id.

In calculating McCormick’s sentence, the district court

varied downward by two levels--resulting in a total offense

level of 26--“to reflect Mr. McCormick’s cooperation with law

enforcement, his relatively early voluntary plea[,] and other

factors.” J.A. 91. From the resulting 78-97 month sentencing

range, the court imposed a 78 month sentence. J.A. 166.

McCormick timely appealed.


On appeal, McCormick challenges his sentence on two

grounds. He contends that the district court erred, first, in

finding that his offense involved a firearm capable of accepting

a large-capacity magazine, and second, in giving insufficient

weight to mitigating factors that would have warranted a shorter

sentence. We consider each of these arguments in turn.



We conclude that McCormick waived his first argument in the

proceedings below. We review the validity of waiver de novo.

Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.

2004). A waived issue is not reviewable on appeal, even for

plain error. United States v. Robinson, 744 F.3d 294, 298 (4th

Cir. 2014). What is required to effect valid waiver varies

depending on the right at issue, United States v. Olano, 507

U.S. 725, 733 (1993), but as relevant here, “[a] party who

identifies an issue, and then explicitly withdraws it,” such as

by raising and withdrawing an objection, “has waived the issue.”

Robinson, 744 at 298 (4th Cir. 2014) (quoting United States v.

Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)). Indeed, “[t]here

can be no clearer intentional relinquishment or abandonment of a

known right than when the court brings the defendant’s prior

objection to his attention,” and the defendant confirms his

intention to withdraw. United States v. Carrasco-Salazar, 494

F.3d 1270, 1273 (10th Cir. 2007) (citation omitted).

McCormick does not contend, nor could he, that he did not

withdraw his objection to the court’s finding that the offense

involved a large-capacity firearm. Instead, he argues that his

withdrawal was neither knowing nor voluntary because the

district court did not engage McCormick in an extensive colloquy

regarding “his willingness to withdraw his objection.” Reply


Br. at 4. We reject this contention. Where a defendant raises

and then withdraws a sentencing objection, “it is difficult to

conceive of a more conspicuous example of a knowing and

voluntary abandonment of a legal right.” Rodriguez, 311 F.3d

435 at 437. Here, the district court, after McCormick’s counsel

indicated his intention to withdraw the objection, expressly

asked McCormick whether his counsel had reviewed the presentence

report with him and whether he agreed with the report, except

for his one outstanding objection. We think the district court

was not required to do more.

Because we conclude that McCormick’s withdrawal of his

objection was knowing and voluntary, he has waived any challenge

to the district court’s large-capacity magazine finding.


We also conclude that the district court did not

erroneously ignore mitigating factors that would have warranted

a shorter sentence. When reviewing sentencing decisions,

“‘whether inside, just outside, or significantly outside the

Guidelines range,’ we apply ‘a deferential abuse-of-discretion


standard.’” United States v. Carter, 564 F.3d 325, 328 (4


2009) (quoting Gall v. United States, 552 U.S. 38, 40 (2007)).

Additionally, appellate courts may consider the guidelines range

to be presumptively reasonable. United States v. Evans, 526


F.3d 155, 161-62 (4th Cir. 2008) (citation omitted). When, as

here, a defendant challenges the length of his below-guidelines

sentence, we similarly presume the sentence to be substantively

reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir.

2012). Noting the significant burden McCormick faces on appeal,

we conduct the following analysis out of an abundance of


Under 18 U.S.C. § 3553(a), sentences must be “sufficient,

but not greater than necessary, to comply with” substantive

reasonableness, as described by the objectives set out in


§ 3553(a)(2).

While the Sentencing Guidelines “reflect a rough

approximation of sentences that might achieve § 3553(a)’s

objectives,” Rita v. United States, 551 U.S. 338, 350 (2007),

“[t]he reasonableness of a sentence is not measured simply by

whether the sentence falls within the statutory range, but by

whether the sentence was guided [by § 3553(a)],” United States

v. Collins, 773 F.3d 25, 32 (4th Cir. 2014) (citation omitted).


Those objectives are “the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2).


Here, the district court did not abuse its discretion in



of the sentencing factors

relevant to

§ 3553(a)’s purposes. The court’s analysis of § 3553(a)

proceeded in three steps. First, in light of McCormick’s early

admission of guilt, the district court announced a two-level

downward variance to a 78-97 month range, but identified no

specific sentence within that range. J.A. 80. Second, after a

colloquy with the prosecution, the court noted that that under

§ 3553(a), “the seriousness of the offense is heightened

substantially by the fact that a number of different types of

firearms were traded . . . to a drug dealer, presumably for

further distribution throughout the community.” J.A. 89-90.

Finally, the court reached the factors on which McCormick

relies. The court recognized that, under § 3553(a), factors

such as McCormick’s minor role in the crime, the fact that this

was his first felony, and his drug problem were all relevant

mitigating factors in determining his sentence. J.A. 87-91.

Balancing these mitigating and aggravating § 3553(a) factors,

the court imposed a sentence of 78 months--the lowest within

McCormick’s already reduced range. J.A. 90-91. The court

reasoned that, “[w]hile the need for the sentence imposed to

reflect the seriousness of the offense is high and the need to

deter this type of conduct is high,” the “future dangerousness


of the defendant with respect to the need to protect the public

from further crimes of the defendant is low.” Id.

Thus, McCormick’s insistence that the court failed to

consider those mitigating factors is plainly contradicted. In

light of the

court’s demonstrated consideration of the

mitigating factors on which McCormick relies, and in light of


fact that McCormick’s below-guidelines sentence is

presumptively reasonable, we find no abuse of discretion in the

district judge’s imposition of McCormick’s 78-month sentence.


For the foregoing reasons, the sentencing order of the

district court is



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