United States v. Robert Bove ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4477
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT BOVE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00104-RJC-1)
Submitted: February 20, 2014 Decided: February 25, 2014
Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marc L. Resnick, Washington, D.C., for Appellant. Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Bove appeals his 135-month, below-Guidelines
sentence imposed after he pled guilty to one count each of
transportation of visual depictions of minors engaged in
sexually explicit conduct, in violation of 18 U.S.C.A.
§ 2252(a)(1) (West Supp. 2013), and possession of visual
depictions of minors engaged in sexually explicit conduct, in
violation of 18 U.S.C.A. § 2252(a)(4) (West Supp. 2013). Bove
argues that his sentence is procedurally unreasonable because he
asserts that the district court failed to duly consider his
argument that his sentence should be lower based on his low
recidivism risk. Bove also asserts that his sentence is
substantively unreasonable because given his history and
characteristics, a shorter sentence would have achieved the
purposes of 18 U.S.C. § 3553(a) (2012). Finding no error, we
affirm.
Because Bove requested a sentence different than the
one imposed, his claim was properly preserved, and this court
reviews it for reasonableness under an abuse of discretion
standard, reversing “unless . . . the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010)
(“By drawing arguments from § 3553 for a sentence different than
the one ultimately imposed, an aggrieved party sufficiently
alerts the district court of its responsibility to render an
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individualized explanation addressing those arguments, and thus
preserves its claim.”).
This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Gall
v. United States, 552 U.S. 38, 51 (2007). This court must first
assess whether the district court properly calculated the
advisory Guidelines range, considered the § 3553(a) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
Lynn, 592 F.3d at 576 (“[A]n individualized explanation must
accompany every sentence.”); United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (holding that the “individualized
assessment . . . must provide a rationale tailored to the
particular case at hand and [be] adequate to permit meaningful
appellate review”) (internal quotation marks and citation
omitted). “Although a court need not necessarily issue a
comprehensive, detailed opinion, the court’s explanation must
nonetheless be sufficient ‘to satisfy the appellate court that
the district court has considered the parties’ arguments and has
a reasoned basis for exercising its own legal decisionmaking
authority.’” United States v. Boulware, 604 F.3d 832, 837 (4th
Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)) (brackets omitted).
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The district court’s explanation “need not be
elaborate or lengthy,” however. Carter, 564 F.3d at 330. As
this court has noted: “Gall was quite explicit that district
courts should provide more significant justifications for major
departures than for minor ones. But when a district court does
not depart or vary at all, it may provide a less extensive,
while still individualized, explanation.” United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal citations,
quotation marks and brackets omitted).
If there is no procedural error, we may then review
the substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” United States v.
Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation
marks and citation omitted). “In analyzing a sentence for
substantive reasonableness, we consider the sentence under a
deferential abuse-of-discretion standard, whereby we must defer
to the trial court and can reverse a sentence only if it is
unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Yooho Weon,
722 F.3d 583, 590 (4th Cir. 2013) (internal quotation marks
omitted). We apply a presumption of reasonableness to a
sentence within or below a properly calculated Guidelines range.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
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We reject Bove’s argument that his sentence is
procedurally unreasonable and should be vacated because the
district court allegedly failed to mention counsel’s argument
that he presented a low risk of reoffending. This court may
look to the entirety of Bove’s sentencing proceeding to
determine whether the district court understood his argument for
a reduced sentence but had reasons for rejecting that argument.
See Rita, 551 U.S. at 344-45, 358-59. It is apparent from the
record that the district court: (1) engaged in discussion about
counsel’s arguments for a lesser sentence; (2) fully considered
counsel’s arguments, including his argument that Bove’s low risk
of reoffending required a lesser sentence; (3) rejected the
argument that Bove’s alleged low recidivism risk required a
lesser sentence; and (4) thoroughly considered and discussed the
§ 3553(a) factors it believed justified Bove’s sentence.
Accordingly, we find no procedural sentencing error by the
district court. Cf. Lynn, 592 F.3d at 583-85 (finding
reversible error where the district court gave “no indication
that [it] considered the defendant’s nonfrivolous arguments
prior to sentencing him” and stated only that it found Lynn’s
sentence to be “fair and appropriate and consistent with the
requirements of § 3553(a)” before imposing Lynn’s sentence)
(internal ellipses and brackets omitted).
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We also reject Bove’s argument that his 135–month
below-Guidelines range sentence was substantively unreasonable
and greater than necessary to achieve § 3553(a)’s purposes.
After considering the district court’s thorough explanation for
the chosen sentence and its explicit discussion of the § 3553(a)
factors, and after considering the parties’ arguments, we find
that Bove has failed to rebut the appellate presumption of
reasonableness this court affords his below-Guidelines sentence.
Susi, 674 F.3d at 289. Accordingly, we conclude that Bove’s
sentence is not substantively unreasonable.
Based on the foregoing, 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.
AFFIRMED
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