United States v. Phillip Rucker ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4063
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP GERRAD RUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:08-cr-00628-GRA-2)
Submitted: September 27, 2011 Decided: October 17, 2011
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Beattie B. Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Gerrad Rucker appeals from his 120-month
sentence imposed after we vacated his 262-month sentence and
remanded for resentencing to permit Rucker to exercise his right
to allocute. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious issues for appeal but raising the following
claims: (1) whether the district court erred in conducting the
Fed. R. Crim. P. 11 hearing, (2) whether Rucker was properly
determined to be a career offender, and (3) whether Rucker’s
sentence was substantively and procedurally reasonable.
Although informed of his right to do so, Rucker has not filed a
pro se supplemental brief. The Government also declined to file
a brief.
In his first appeal, we ruled that Rucker’s Rule 11
hearing was proper, and we affirmed Rucker’s conviction. We
also determined that Rucker was properly sentenced as a career
offender. In this appeal, Rucker again challenges the Rule 11
hearing and the determination that he was a career offender.
However, the mandate rule “forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). Because we
expressly rejected these claims in Rucker’s first appeal, they
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are unreviewable at this time. As such, we dismiss these
claims.
Rucker also questions whether his sentence was
procedurally or substantively unreasonable although he offers no
specific claims of error. We review a sentence under a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to inspect for procedural reasonableness by
ensuring that the district court committed no significant
procedural errors, such as improperly calculating the Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). A
reviewing court then considers the substantive reasonableness of
the sentence imposed, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51.
Here, the district court properly calculated Rucker’s
Guidelines sentence and then imposed a variance sentence
substantially below the Guidelines range. Neither party
objected to the variance or the Guidelines range, and the
district court provided detailed reasoning supporting its
decision. We find that the court set forth a sufficiently
developed rationale to support the sentence, and there was no
other procedural error.
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Regarding the substantive reasonableness of Rucker’s
sentence, the district court sentenced Rucker to the minimum
sentence permitted by statute. Such a sentence is per se
reasonable. As such, no merit can be found in this aspect of
Rucker’s appeal. See United States v. Farrior, 535 F.3d 210,
224 (4th Cir. 2008) (finding imposition of mandatory life
sentence per se reasonable).
Pursuant to Anders, we have reviewed the entire record
in the case and found no meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform Rucker in writing of his
right to petition the Supreme Court of the United States for
further review. If Rucker requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may motion this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Rucker. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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