United States v. Omari ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4829
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SAID OMARI,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-01254-TLW-1)
Submitted: August 4, 2010 Decided: August 16, 2010
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William I. Diggs, THE LAW FIRM OF WILLIAM I. DIGGS, Myrtle
Beach, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Said Omari pled guilty pursuant to a plea agreement to
conspiracy to possess with intent to distribute heroin, ecstasy,
and 500 grams or more of cocaine, in violation of 21 U.S.C.
§ 846 (2006) (“Count One”), and possession of a firearm during
and in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A) (2006) (“Count Three”). The district
court sentenced Omari to seventy-two months’ imprisonment on
Count One and sixty months’ imprisonment on Count Three, to be
served consecutively. Omari’s sentence fell within his advisory
guidelines range. Omari timely noted his appeal.
On appeal, counsel for Omari has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). In his
Anders brief, counsel suggests that the district court erred in
denying his request for a variance sentence. * We affirm.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 41 (2007); United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008). In reviewing a sentence, we
must first ensure that the district court committed no
procedural error. Gall, 552 U.S. at 51. If we find no
*
Omari, informed of his right to file a pro se supplemental
brief, has not done so.
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procedural error, we then consider the substantive
reasonableness of the sentence. Id. We presume that a sentence
within a properly calculated guidelines range is reasonable.
See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
“When rendering a sentence, the district court must
make an individualized assessment based on the facts presented.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks and emphasis omitted). Accordingly, a
sentencing court must apply the relevant 18 U.S.C. § 3553(a)
(2006) factors to the particular facts presented and must
“‘state in open court’” the particular reasons that support its
chosen sentence. Id. (quoting 18 U.S.C. § 3553(c) (2006)).
To meet this requirement, the district court must set forth
enough to show a reasoned basis for its decision and
consideration of the parties’ arguments. Id. “‘Where the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence’ than that set forth in the
advisory Guidelines, a district judge should address the party’s
arguments and ‘explain why he has rejected those arguments.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).
Failure to do so constitutes procedural error. United States v.
Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010).
We have reviewed the record and conclude that the
district court did not commit procedural error in sentencing
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Omari. Additionally, Omari’s sentence is substantively
reasonable, as it falls within his advisory guidelines range,
and the record does not rebut the presumption of reasonableness
that this court applies to such a sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Omari’s conviction and sentence. This court
requires that counsel inform Omari, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Omari 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 Omari.
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
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