United States v. Jervaze Salley ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4149
UNITED STATES OF AMERICA,
Plaintiff- Appellee,
v.
JERVAZE DUPREA SALLEY, a/k/a Jerv,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Orangeburg. Terry L. Wooten, Senior District Judge. (5:18-cr-00999-TLW-7)
Submitted: December 28, 2021 Decided: January 13, 2022
Before NIEMEYER and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Geel, GEEL LAW FIRM, LLC, Charleston, South Carolina, for Appellant.
Jane Barrett Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jervaze Duprea Salley pled guilty, pursuant to a written plea agreement, to use of a
telephone to facilitate the commission of a controlled substance felony, in violation of 21
U.S.C. § 843(b), and the district court sentenced him to 48 months’ imprisonment. On
appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but questioning whether the sentence
is reasonable. Salley filed a pro se supplemental brief, also challenging whether his
sentence is reasonable. We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard.” United States v. Nance, 957 F.3d 204, 212 (4th Cir.), cert.
denied, 141 S. Ct. 687 (2020). We must first “evaluate procedural reasonableness,
determining whether the district court committed any procedural error, such as improperly
calculating the [Sentencing] Guidelines range, failing to consider the § 3553(a) factors, or
failing to adequately explain the chosen sentence.” Id. (citing Gall v. United States, 552
U.S. 38, 51 (2007)). If “the district court has not committed procedural error,” we then
assess the substantive reasonableness of the sentence. Id. Substantive reasonableness
review “takes into account the totality of the circumstances to determine whether the
sentencing court abused its discretion in concluding that the sentence it chose satisfied the
standards set forth in § 3553(a).” Id. (internal quotation marks omitted). “Any sentence
that is within . . . a properly calculated Guidelines range is presumptively [substantively]
reasonable. Such a presumption can only be rebutted by showing that the sentence is
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unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014) (internal citation omitted).
Counsel questions whether the district court erred by failing to apply the minimal
participant role reduction pursuant to U.S. Sentencing Guidelines Manual § 3B1.2(a)
(2018) (providing for a four-level reduction if the defendant was a “minimal participant”
in the criminal activity). In assessing a Guidelines enhancement, this court reviews
findings of fact for clear error and legal conclusions de novo. United States v. Fluker, 891
F.3d 541, 547 (4th Cir. 2018). “[C]lear error exists only when the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Slager, 912 F.3d 224, 233 (4th Cir. 2019) (internal quotation
marks omitted). As the district court found, even if the reduction applied, Salley’s advisory
Guidelines range would still have been higher than the four-year statutory maximum Salley
was subject to under 21 U.S.C. § 843(b), (d). Therefore, the district court did not clearly
err when it determined that it was unnecessary to rule regarding whether USSG § 3B1.2(a)
applied. See Fed. R. Crim. P. 32(i)(3)(B) (requiring sentencing court to either rule on a
dispute “or determine that a ruling is unnecessary . . . because the matter will not affect
sentencing”).
In Salley’s pro se brief, he argues that the district court procedurally erred by failing
to adequately consider the § 3553(a) factors, failing to individually assess Salley’s health
concerns, and ignoring the parties’ mitigation arguments. The district court must
“adequately explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” United States v. Blue, 877 F.3d 513, 518 (4th
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Cir. 2017) (internal quotation marks omitted). “[W]e do not evaluate a court’s sentencing
statements in a vacuum,” and we may therefore discern a sentencing court’s rationale from
the context surrounding its decision, including statements the court made during the
sentencing hearing. United States v. Montes-Pineda, 445 F.3d 375, 381 (4th Cir. 2006).
“A sentencing court’s explanation is sufficient if it, although somewhat briefly, outlines
the defendant’s particular history and characteristics not merely in passing or after the fact,
but as part of its analysis of the statutory factors and in response to defense counsel’s
arguments for a downward departure.” Blue, 877 F.3d at 519 (alterations and internal
quotation marks omitted). Having reviewed the record, we conclude that the district court
did not abuse its discretion. The district court properly weighed the § 3553(a) factors—
particularly, Salley’s criminal history and the seriousness of Salley’s current offense—and
provided ample indication that it had considered Salley’s health concerns and the parties’
mitigation arguments. We further conclude that Salley fails to rebut the presumption of
reasonableness that we afford his within-Guidelines sentence. Thus, Salley’s sentence is
procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the entire record in this appeal and
have found no meritorious issues for review. We therefore affirm the district court’s
judgment. This court requires that counsel inform Salley, in writing, of the right to petition
the Supreme Court of the United States for further review. If Salley requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Salley.
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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.
AFFIRMED
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