United States v. Lamar Murphy , 548 F. App'x 880 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4222
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAMAR RYAN MURPHY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:10-cr-00231-FDW-1)
Submitted: November 22, 2013 Decided: December 18, 2013
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamar Ryan Murphy appeals his conviction and the 120-
month sentence imposed by the district court following his
guilty plea to possessing firearms as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal
but questioning whether the district court appropriately
sentenced Murphy. Murphy 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 brief. For the reasons that
follow, we affirm.
We review criminal sentences for reasonableness,
applying “a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). We first review the
sentence for significant procedural error, including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) factors, and inadequate explanation
of the sentence imposed. See United States v. Lynn, 592 F.3d
572, 575 (4th Cir. 2010).
If we find no such procedural error, we examine the
substantive reasonableness of a sentence in light of the “the
totality of the circumstances.” Gall, 552 U.S. at 51. The
sentence imposed must be “sufficient, but not greater than
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necessary,” to satisfy the purposes of sentencing. See 18
U.S.C. § 3553(a). A within-Guidelines sentence is presumed
reasonable on appeal, and the defendant bears the burden of
“rebut[ting] 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).
We have thoroughly reviewed the record and conclude
that Murphy’s sentence is reasonable. We recognize that the
government’s objections to the presentence report (“PSR”) were
untimely, and that it did not explain the delay. Nonetheless,
we find no abuse of discretion in the district court’s decision
to adopt the revised PSR, which incorporated the government’s
recommended changes. See United States v. Archuleta, 128 F.3d
1446, 1452 n.12 (4th Cir. 1997) (recognizing that an explicit
finding of good cause for delay is not always required).
Murphy’s counsel agreed to permit the government to
file untimely objections, notwithstanding Murphy’s subsequent
pro se objection. Murphy was given ample time to research and
respond to the objections, and he did not object to the
resulting enhancements at sentencing. See Fed. R. Crim. P.
32(b)(2); see also United States v. Young, 140 F.3d 453, 457 (2d
Cir. 1998) (recognizing that, although sentencing court has
discretion to deem late objections forfeited, it “may impose
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sentencing enhancements belatedly suggested by the Government
and not contained in the PSR, provided the defendant is afforded
an adequate opportunity to respond to the Government’s late
submission and any revision of the PSR” (internal citation
omitted)).
The district court properly calculated the Guidelines
range and imposed a sentence within that range. It considered
the parties’ arguments and provided a detailed explanation of
its sentence, thoroughly grounded in the § 3553(a) factors. In
addition, Murphy never rebutted the presumption of
reasonableness accorded to his within-Guidelines sentence. See
Montes-Pineda, 445 F.3d at 379. We therefore find no abuse of
discretion.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Murphy’s conviction and sentence. This
court requires that counsel inform Murphy, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Murphy 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 Murphy.
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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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