United States v. Michael Greene , 581 F. App'x 280 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4875
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL GREENE, a/k/a Mike,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:09-cr-00039-FDW-5)
Submitted: July 15, 2014 Decided: August 18, 2014
Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Anne M. Tompkins, Amy E. Ray,
Assistant United States Attorneys, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Michael Greene was convicted of
one count of conspiracy to distribute and possess with intent to
distribute one or more controlled substances, in violation of 21
U.S.C. §§ 841(a)(1), 846, 851 (2012), and one count of
conspiracy to commit bank robbery, in violation of 18 U.S.C.
§ 1951 (2012). In his initial appeal, Greene’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there were no meritorious arguments for appeal.
During the pendency of the appeal, the Government revealed that
one of its trial witnesses had engaged in misconduct, including
taking evidence relevant to Greene’s trial. In our decision, we
took no position on this issue, because Greene had filed a
motion for a new trial in the district court on the same basis.
Thus, we determined that the district court should address the
issue in the first instance. In reviewing Greene’s remaining
arguments, we affirmed the convictions but vacated the sentence
and remanded for resentencing in light of the rule announced in
Dorsey v. United States, 132 S. Ct. 2321 (2012).
On remand, the district court denied Greene’s motion
for a new trial without an evidentiary hearing. The court
resentenced Greene to forty years’ imprisonment for the drug
conspiracy and twenty years’ imprisonment for the robbery
conspiracy to run consecutively. In the present appeal, Greene
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challenges his sentence and the court’s decision not to have an
evidentiary hearing on his motion for a new trial. We affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 46 (2007). We must first ensure that the
district court committed no “significant procedural error,”
including improper calculation of the advisory Sentencing
Guidelines range, insufficient consideration of the § 3553(a)
factors, and inadequate explanation of the sentence imposed.
Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010). In announcing a sentence, the district
court is not required to “robotically tick through § 3553(a)’s
every subsection, particularly when imposing a within-Guidelines
sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (internal quotation marks omitted). The court must,
however, conduct an “individualized assessment justifying the
sentence imposed and rejection of arguments for a higher or
lower sentence based on § 3553.” Lynn, 592 F.3d at 584(internal quotation marks omitted).
The district court must provide sufficient explanation
to “demonstrate that it ‘considered the parties’ arguments and
ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority.’” Lynn, 592 F.3d at 576 (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)). Such
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explanation is required to “promote the perception of fair
sentencing” and to permit “meaningful appellate review.” Gall,
552 U.S. at 50. We apply a presumption of reasonableness on
appeal to a within-Guidelines range sentence. Rita, 551 U.S. at
347; see United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007) (“A sentence within the proper Sentencing Guidelines range
is presumptively reasonable.”) (citation omitted).
We find no error with the district court’s imposition
of sentence. The district court incorporated many of the
findings from the first sentencing and addressed fully Greene’s
argument for a thirty-year sentence. We have considered
Greene’s arguments made in this appeal and conclude that the
arguments are without merit.
Greene claims that he was entitled to an evidentiary
hearing on his motion for a new trial. We review the district
court’s decision in this regard for abuse of discretion. United
States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). Because the
court was very familiar with the trial evidence and the grounds
Greene was asserting for a new trial, the court did not abuse
its discretion declining to have an evidentiary hearing. United
States v. Hamilton, 559 F.2d 1370, 1373–74 (5th Cir. 1977).
Accordingly, we affirm the sentence and the court’s
denial of Greene’s motion for a new trial. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before this Court and
argument would not aid the decisional process.
AFFIRMED
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