                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4556


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOSEPH F. CLEMONS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (4:08-cr-00081-D-1)


Argued:   October 29, 2010                 Decided:   February 23, 2011


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Davis joined.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.         Dennis
Michael Duffy, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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WYNN, Circuit Judge:

        A properly calculated sentence is entitled to a presumption

of reasonableness; a defendant may rebut the presumption only by

demonstrating that the sentence is unreasonable when measured

against    the    18    U.S.C.    §     3553(a)     factors.       United    States    v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)(quoting United

States v. Sharp, 436 F.3d 730, 738 (7th Cir. 2006)).                                 Here,

Defendant      Joseph    F.    Clemons        argues     that   the     district     court

abused its discretion in imposing a within-Guidelines sentence.

Because        Defendant       fails      to       rebut     the       presumption     of

reasonableness associated with his within-Guidelines sentence,

we affirm the sentence imposed.



                                              I.

        Defendant pled guilty to bank robbery in violation of 18

U.S.C. § 2113(a).             On the day of the robbery, Defendant was

intoxicated      and    came     upon    an    unoccupied       2006    Suzuki   Forenza

(valued at $8,365) with the engine running.                      Defendant stole the

car, drove it to the first bank he saw, went into the bank, and

handed a note to the teller reading “All your money.”                                 The

teller gave Defendant $3,015.                 After robbing the bank, Defendant

drove    off     in    the    stolen     car.       At     sentencing,      Defendant’s

attorney stated that Defendant later returned the car to within

a block of where he found it and left the keys in the vehicle.

                                               3
Defendant’s Presentence Investigation Report confirms that the

car was ultimately returned, without damage, to its owner.

      In calculating Defendant’s advisory Sentencing Guidelines

range, the probation officer enhanced Defendant’s base offense

level by one level because Defendant caused a loss of more than

$10,000 (calculated by adding the value of the car to the amount

taken from the bank).           Defendant objected to the inclusion of

the car’s value in the loss amount, arguing that he had merely

borrowed the car—albeit without the owner’s permission.                     The

district court rejected Defendant’s argument and included the

full value of the car in the loss amount.           Defendant appealed.



                                     II.

      We review the district court’s legal conclusions concerning

the   application    of   the    Sentencing     Guidelines,    including     the

application   of     an   enhancement,     de   novo.   United     States    v.

Manigan, 592 F.3d 621, 626 (4th Cir. 2010).                   The Sentencing

Guidelines provide for a one-level sentence enhancement where

the loss from a robbery exceeded $10,000 but was no greater than

$50,000.      U.S.    Sentencing    Guidelines     Manual     (“U.S.S.G.”)     §

2B3.1(b)(7) (2009).       The Guidelines define loss to include “the

value of the property taken, damaged, or destroyed.”              U.S.S.G. §

2B3.1 cmt. n.3 (emphasis added).           This Court, in an unpublished

decision, and several sister circuits have held that the value

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of property ultimately recovered is properly included in the

calculation      of   loss   amount     under   U.S.S.G.    §   2B3.1.       United

States v. Cardenas-Rosas, 209 F. App’x 342, 345 (4th Cir. 2006);

see also United States v. Rivera-Rivera, 555 F.3d 277, 293 (1st

Cir. 2009) (“It is of no moment [to loss amount] that the items

were recovered and returned.”), cert. denied, Sanchez-Rosado v.

United States, 130 S. Ct. 344 (2009); 1 United States v. Donaby,

349 F.3d 1046, 1051 (7th Cir. 2003) (upholding enhancement for

value     of   vehicle   stolen    in   preparation   for       and   used   during

robbery); United States v. Powell, 283 F.3d 946, 948 (8th Cir.

2002) (holding that “the value of a car taken by robbers for the

purpose of their getaway may be included in calculating loss”).

      We are guided by those decisions in holding from the outset

that the district court properly included the value of the car

in   determining      that   the   loss   amount   here    exceeded      $10,000. 2


      1
       The First Circuit appears to make a distinction between
vehicles stolen during the course of a robbery and vehicles
stolen in preparation for a robbery; only the value of the
former may be included in the calculation of loss amount under
U.S.S.G. § 2B3.1(b)(7).    Compare United States v. Austin, 239
F.3d 1, 8 (1st Cir. 2001) (rejecting enhancement for value of
car stolen in preparation for and later used during robbery),
with United States v. Cruz-Santiago, 12 F.3d 1, 4 (1st Cir.
1993) (upholding inclusion of value of vehicle stolen during
robbery).   Defendant does not argue on appeal that we should
adopt the First Circuit’s position.
      2
       The Sentencing Guidelines are, of course, only advisory.
See United States v. Booker, 543 U.S. 220, 245 (2005).        A
district court may consider a defendant’s return of undamaged
(Continued)
                                          5
Nonetheless,        Defendant     argues      that,       even     if      the     Guidelines

“permitted the district court to ascribe the loss value of the

car” to Defendant, doing so here was unreasonable and an abuse

of discretion.        Brief of Appellant at 13.

       “A sentence within the proper Sentencing Guidelines range

is presumptively reasonable.”              United States v. Allen, 491 F.3d

178, 193 (4th Cir. 2007).               This standard is deferential, and a

defendant can rebut the presumption only by demonstrating that

the sentence is unreasonable when measured against the 18 U.S.C.

§    3553(a)      factors.       Montes-Pineda,           445    F.3d      at      379.      “In

reviewing      any    sentence,        ‘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    (4th      Cir.    2009)      (quoting        Gall   v.

United States, 552 U.S. 38, 41 (2007)).

       Defendant makes both procedural and substantive challenges

to    the   reasonableness        of    his       sentence.           We     first    address

Defendant’s        procedural     arguments.          See       id.     (stating      that     a

reviewing court should consider substantive reasonableness only

if the sentence is first found to be procedurally reasonable).




property to its owner in departing downward from a Guidelines
sentence—and our holding today in no way purports to limit a
district court’s authority to do so.

                                              6
      “A sentence may be procedurally unreasonable . . . if the

district court provides an inadequate statement of reasons or

fails to make a necessary factual finding.”                      United States v.

Moreland, 437 F.3d 424, 434 (4th Cir. 2006), overruled in part

on other grounds by Gall v. United States, 552 U.S. 38 (2007),

and United States v. Rita, 551 U.S. 338 (2007), as recognized in

United States v. Diosdado-Star, No. 09-4723, 2011 WL 198658, *3-

*6 (4th Cir. Jan. 24, 2011).               “When rendering a sentence, the

district court ‘must make an individualized assessment based on

the facts presented.’          That is, the sentencing court must apply

the   relevant    [18    U.S.C.]     §   3553(a)     factors     to    the    specific

circumstances of the case before it.”                   Carter, 564 F.3d at 328

(quoting Gall, 552 U.S. at 50).

      Defendant      argues     that      the     district     court     failed      to

articulate how including a non-existent loss in calculating his

sentence reflected the nature of his offense.                    He argues further

that the district court made no individualized assessment to

explain why the Guidelines trumped the § 3553(a) factors that

supported    a    below-Guidelines        sentence.        The      record    reveals,

however,      that      the    district         court     carefully      considered

Defendant’s      loss    arguments       and    rejected     them     based    on   the

applicable Guideline, the case law, and the facts at hand.                          The

district    court    also     thoroughly        considered    Defendant’s       § 3553

arguments.       Defendant has failed to show that his sentence was

                                           7
procedurally unreasonable.                 See United States v. Hernandez, 603

F.3d     267,    272    (4th       Cir.     2010)       (sentence        not      procedurally

unreasonable where adequate explanation given).

       We turn next to Defendant’s substantive challenge to the

reasonableness          of     his        sentence.           “A        sentence      may       be

substantively unreasonable if the court relies on an improper

factor     or    rejects       policies         articulated        by    Congress      or      the

Sentencing       Commission.”             Moreland,       437      F.3d      at    434.        “In

accepting       the    sentencing         guidelines,         Congress         continued       the

practice of permitting a sentencing court to consider both real

offense     behavior         and     charged         conduct.”          United     States      v.

Carroll,    3    F.3d    98,       101    (4th    Cir.    1993)     (footnote        omitted).

Further, in 18 U.S.C. § 3553(a), Congress instructed district

courts to impose sentences that are sufficient but not greater

than necessary to accomplish the goals of sentencing.                                Kimbrough

v.   United      States,       552       U.S.    85,    101    (2007).            “Substantive

reasonableness review entails taking into account the totality

of the circumstances[.]”                 United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007) (quotation omitted).

       Defendant argues that the loss amount attributable to the

car had nothing to do with the real offense he committed.                                       He

contends    that       the    Guidelines         treated      him       as   though       he   had

totaled the car or otherwise caused its owner to be deprived of

it forever.           Defendant asserts that treating the value of the

                                                 8
recovered      car   as   a   loss   does       not    comport   with   §   3553(a)’s

overarching provision that a sentence not be excessive.

     As explained above, Defendant has not demonstrated that the

district court erred in its application of Sentencing Guideline

§ 2B3.1.        Defendant       directs     us        to   no   authority   for   the

proposition that a proper application of this guideline could

produce    a   sentence       unintended    by    Congress.        Considering    the

totality of the circumstances, we hold that Defendant fails to

show that his sentence is substantively unreasonable.

                                                                             AFFIRMED




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