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United States v. Jeffery McCurdy
USCA4 Appeal: 22-4394 Doc: 21 Filed: 12/22/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4394
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFERY ALLEN MCCURDY,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:21-cr-00014-TSK-MJA-1)
Submitted: December 20, 2022 Decided: December 22, 2022
Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Elizabeth B. Gross, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant. William Ihlenfeld, United States Attorney, Stephen Warner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *2 USCA4 Appeal: 22-4394 Doc: 21 Filed: 12/22/2022 Pg: 2 of 3
PER CURIAM:
Jeffery Allen McCurdy appeals his 37-month sentence for possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1), challenging only the adequacy of the district
court’s response to his sentencing arguments. We affirm.
We review a defendant’s sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Where, as here, the defendant
“presents nonfrivolous reasons for imposing a sentence outside the [Sentencing]
Guidelines [range], the sentencing judge must address or consider those arguments and
explain why he has rejected them.” United States v. Powers, 40 F.4th 129, 137 (4th Cir.
2022) (internal quotation marks omitted). Critically, though, “[a]ppellate review is not a
game of ‘Gotcha!’ where we tally up the number of distinguishable arguments a defendant
mentioned in the district court and then comb the sentencing transcript for proof the district
court mentioned each one by name.” Id. “Rather, when a district court addresses a
defendant’s central thesis, it need not address separately every specific claim made in
support.” Id. (cleaned up).
Contrary to McCurdy’s argument on appeal, our review of the sentencing transcript
confirms that the district court sufficiently responded to McCurdy’s claims based on his
struggles with alcohol abuse and mental health, his disadvantaged childhood, and his
allegedly overstated criminal history category. Furthermore, the court made abundantly
clear that the most important sentencing factor was the seriousness of the offense—during
which McCurdy recklessly threatened a tow-truck driver with a shotgun—thus eliminating
any doubt as to why the court found McCurdy’s mitigation arguments unpersuasive. See *3 USCA4 Appeal: 22-4394 Doc: 21 Filed: 12/22/2022 Pg: 3 of 3
United States v. Lester, 985 F.3d 377, 388 (4th Cir. 2021) (“[W]e do not evaluate a court’s
sentencing statements in a vacuum, but pay attention to the context surrounding a district
court’s explanation in reviewing whether non-frivolous arguments are addressed or
considered by a sentencing judge.” (cleaned up)).
Accordingly, we affirm the district court’s judgment. 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.