United States v. Sinclair Myers ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5057
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SINCLAIR ARCHIBALD MYERS, a/k/a Lyndon Francis Lyndon, a/k/a
Elijah Josiah Middleton, a/k/a Frances Lyndon, a/k/a Stephen
Calvin Joseph,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cr-00028-JRS-1)
Submitted: June 25, 2012 Decided: July 16, 2012
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Stephen David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Sinclair Archibald Myers pled guilty to one count of
illegal reentry after deportation for an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2) (2006). On appeal of
his eighty-four-month sentence, Myers claimed his sentence was
procedurally and substantively unreasonable. Expressing no
opinion as to whether Myers’ sentence was substantively
reasonable, we vacated the judgment and remanded to the district
court for consideration of Myers’ policy arguments in mitigation
of the sixteen-level enhancement. United States v. Myers, 442
F. App’x 763 (4th Cir. 2011) (No. 10-4819). On remand, the
district court, after expressly considering Myers’ policy
arguments, again imposed an eighty-four-month sentence. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that, in counsel’s
opinion, there are no meritorious grounds for appeal, but
raising the issue of whether Myers’ sentence is substantively
reasonable. Myers was notified of his right to file a pro se
supplemental brief but has not done so. We affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009). In so doing, we first examine the sentence for
“significant procedural error,” including “failing to calculate
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(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. We then consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the sentence is
within the Guidelines range, we presume on appeal that the
sentence is reasonable. United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008); see Rita v. United States, 551 U.S. 338, 346-56
(2007) (permitting appellate presumption of reasonableness for
within-Guidelines sentence).
On appeal, Myers argues that his within–Guidelines
sentence is substantively unreasonable because the district
court rejected his argument that the illegal reentry Guideline,
U.S. Sentencing Guidelines Manual § 2L1.2, lacks empirical
support for the sixteen-level increase and the offense levels
set by the Guideline do not rationally relate in terms of
seriousness to other offenses. However, the presumption of
reasonableness is not overcome simply because the district court
failed to reject the policy of a Guideline. See United States
v. Mondragon–Santiago, 564 F.3d 357, 365–67 (5th Cir. 2009)
(explaining that, although “district courts certainly may
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disagree with the Guidelines for policy reasons and may adjust a
sentence accordingly[,] . . . if they do not, we will not
second-guess their decisions under a more lenient standard
simply because the particular Guideline is not empirically-
based”). On remand, the district court acknowledged Myers’
arguments regarding USSG § 2L1.2 and its ability to vary from
the Guidelines range based on those arguments, but it ultimately
rejected those arguments. We conclude that Myers has not shown
his sentence is unreasonable in this regard. Furthermore, in
fashioning Myers’ sentence, the district court set forth a
sufficiently developed rationale to support the sentence,
specifically addressing Myers’ arguments for a lower sentence.
We conclude that Myers’ sentence is reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Myers, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Myers 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 Myers. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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