United States v. Rashard Wilson , 595 F. App'x 193 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4226
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RASHARD WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00086-RWT-5)
Submitted: October 31, 2014 Decided: December 22, 2014
Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Michael F. Smith, Victoria S. Palmer, THE SMITH APPELLATE LAW
FIRM, Washington, D.C., for Appellant. Arun G. Rao, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashard Wilson appeals his conviction and 235-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute one kilogram or
more of phencyclidine (“PCP”), twenty-eight grams or more of
cocaine base, and heroin, in violation of 21 U.S.C. § 846
(2012). On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues for appeal but questioning whether
(1) Wilson’s appellate waiver is enforceable, (2) his sentence
is unreasonable on multiple grounds, and (3) the Government
breached the plea agreement. Wilson was notified of his right
to file a pro se supplemental brief but has not done so. The
Government has declined to file a response. We affirm.
Counsel first argues that the court inaccurately
advised Wilson regarding the appellate waiver provision in his
plea agreement, rendering the waiver unenforceable. We need not
reach this issue, as the Government has not sought to enforce
the waiver, and we decline to enforce appellate waivers sua
sponte. See United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005); see also United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007) (recognizing that, in Anders appeal with
appellate waiver, Government’s failure to respond “allow[s] this
court to perform the required Anders review”).
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Counsel next raises several challenges to Wilson’s
sentence. We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). We “must first ensure that the
district court committed no significant procedural error,” such
as improper calculation of the Guidelines range, insufficient
consideration of the 18 U.S.C. § 3553(a) (2012) factors, and
inadequate explanation of the sentence imposed. Gall, 552 U.S.
at 51. In assessing Guidelines calculations, we review factual
findings for clear error, legal conclusions de novo, and
unpreserved arguments for plain error. United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
If we find no procedural error, we examine the
substantive reasonableness of a sentence under “the totality of
the circumstances.” Gall, 552 U.S. at 51. The sentence imposed
must be “sufficient, but not greater than necessary,” to satisfy
the goals of sentencing. See 18 U.S.C. § 3553(a). We presume
on appeal that a within- or below-Guidelines sentence is
substantively reasonable. Susi, 674 F.3d at 289. The defendant
bears the burden to “rebut the presumption by demonstrating that
the sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
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Counsel questions whether the trial court erred in
imposing the career offender Guidelines enhancement because his
Maryland conviction for possession with intent to distribute PCP
was not a proper career offender predicate in light of
Descamps v. United States, 133 S. Ct. 2276 (2013). We find this
argument unpersuasive, as Wilson stipulated to the career
offender enhancement, and, in any event, his statute of
conviction clearly qualifies as a predicate “controlled
substance offense.” See U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.2(b) (defining controlled substance offense); Md.
Code Ann., Crim. Law, § 5-602 (LexisNexis 2012) (criminalizing
distributing or possessing with intent to distribute controlled
dangerous substance).
Counsel also questions whether the court erred in
considering factors other than Wilson’s substantial assistance
in determining the extent of his downward departure. Where the
Government has moved for a downward departure under USSG
§ 5K1.1, the court “has broad discretion in deciding whether to
depart downward and to what extent.” United States v. Pearce,
191 F.3d 488, 492 (4th Cir. 1999). Guidelines Section 5K1.1(a)
provides a non-exclusive list of factors the district court
should consider in ruling on a downward departure motion. The
district court is required to conduct an “individualized
qualitative examination” of the defendant’s cooperation. United
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States v. Hill, 70 F.3d 321, 325 (4th Cir. 1995). “[A]ny factor
considered by the district court on a § 5K1.1 motion must relate
to the ‘nature, extent, and significance’ of the defendant’s
assistance.” United States v. Pearce, 191 F.3d 488, 492 (4th
Cir. 1999). However, “[t]he nature, extent, and significance of
assistance can involve a broad spectrum of conduct that must be
evaluated by the court on an individual basis.” USSG § 5K1.1
cmt. (background).
Our review of the record reveals no error in the
court’s consideration of Wilson’s relative assistance. Although
it is not one of the factors enumerated in USSG § 5K1.1(a),
comparison of Wilson’s contribution with that of his
codefendants is directly related to the nature, extent, and
significance of Wilson’s assistance and relevant to several of
the enumerated factors. See USSG § 5K1.1(a)(1), (3). Thus, we
conclude the court did not abuse its broad discretion in
determining the extent of the departure based in part on
Wilson’s relative assistance.
Counsel next questions whether the court imposed a
substantively unreasonable sentence because his sentence was
greater than that of his codefendants. As counsel concedes,
however, the court considered the need to limit sentencing
disparities but concluded that Wilson’s higher Guidelines range
was warranted by his extensive criminal history and resulting
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career offender status. Because any disparity in Wilson’s
sentence was not unjustified, his sentence was not substantively
unreasonable on this basis.
Finally, counsel also questions whether the Government
breached the plea agreement when it agreed not to rely on
Wilson’s prior felony drug conviction to enhance his mandatory
minimum sentence, but later relied on that conviction to argue
for the career offender enhancement. We conclude this argument
is meritless. Wilson stipulated to the career offender
enhancement, and the Government did not obligate itself not to
rely on Wilson’s prior convictions for purposes other than the
statutory sentencing enhancement. Because the Government is
held only to those promises it actually made in the plea
agreement, United States v. Dawson, 587 F.3d 640, 645 (4th Cir.
2009), we discern no breach of the plea agreement.
In sum, the court properly calculated Wilson’s
Guidelines range and adopted the Government’s request for a
downward departure under USSG § 5K1.1. The court provided a
detailed explanation for the sentence it imposed, grounded in
the § 3553(a) factors. Wilson does not rebut the presumption of
reasonableness accorded his below-Guidelines sentence. See
Susi, 674 F.3d at 289; Montes-Pineda, 445 F.3d at 379. And the
Government did not breach the plea agreement. We therefore
conclude the sentence is reasonable.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Wilson’s conviction and sentence. This
court requires that counsel inform Wilson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Wilson 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 Wilson.
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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