United States v. Ellison ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4751
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    DONALD DAVID ELLISON,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Statesville. Richard L. Voorhees,
    District Judge. (5:04-cr-00028-7)
    Submitted:   July 13, 2007                 Decided:   August 9, 2007
    Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina,
    for Appellant.   Gretchen C.F. Shappert, United States Attorney,
    Charlotte, North Carolina, Amy E. Ray, Assistant United States
    Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Donald David Ellison pled guilty to possession with
    intent   to      distribute    methamphetamine         and   possession    of
    pseudoephedrine    with   intent    to   manufacture     methamphetamine   in
    violation of 
    21 U.S.C. §§ 841
    , 846 (2000) and 
    18 U.S.C. § 2
     (2000).
    The district court sentenced Ellison to 188 months’ imprisonment.
    Ellison did not file a notice of appeal after the court entered
    judgment.   On June 22, 2006, Ellison filed a motion under 
    28 U.S.C. § 2255
     (2000), asserting his trial counsel failed to file a notice
    of appeal on his behalf.      The district court granted the motion and
    entered an amended judgment from which Ellison could appeal.
    Ellison filed a timely notice of appeal from the second judgment.
    On appeal and after Ellison’s counsel filed a brief, Ellison filed
    a pro-se supplemental brief.
    Ellison’s counsel first argues that the district court
    erred by enhancing Ellison’s sentence based on its factual findings
    that   Ellison    possessed    a   gun   and    that   the   manufacture   of
    methamphetamine in this case created a substantial risk of harm to
    the environment.    U.S. Sentencing Guidelines Manual § 2D1.1(b)(1),
    (6) (2004).      Ellison contends the Government failed to submit
    evidence supporting these findings.            When, as here, the district
    court relies on information in the Presentence Report in making
    findings, the defendant bears the burden of establishing that the
    information relied on by the district court is incorrect; mere
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    objections are insufficient.        United States v. Love, 
    134 F.3d 595
    ,
    606 (4th Cir. 1998); United States v. Terry, 
    916 F.2d 157
    , 162 (4th
    Cir. 1990).     “Without an affirmative showing the information is
    inaccurate, the court is ‘free to adopt the findings of the
    [presentence      report]    without      more     specific       inquiry     or
    explanation.’”     United States v. Love, 
    134 F.3d 595
    , 606 (4th Cir.
    1998) (citations omitted).      After thoroughly reviewing the record,
    we find Ellison has not met his burden.
    Ellison’s counsel also argues that Ellison’s sentence was
    procedurally    unreasonable    because     the   court    merely   mentioned
    without articulating its consideration of the sentencing factors
    under   
    18 U.S.C. § 3553
    (a)   (2000).       This    Court   reviews    the
    imposition of a sentence for reasonableness.               United States v.
    Booker, 
    543 U.S. 220
    , 260-61 (2005); United States v. Hughes, 
    401 F.3d 540
    , 546-47 (4th Cir. 2005).             After Booker, courts must
    calculate the appropriate guideline range, making any appropriate
    factual findings.     United States v. Davenport, 
    445 F.3d 366
    , 370
    (4th Cir. 2006).      The court then should consider the resulting
    advisory guideline range in conjunction with the factors under 
    18 U.S.C.A. § 3553
    (a), and determine an appropriate sentence.                  “[A]
    sentence     within   the    proper    advisory     Guidelines      range     is
    presumptively reasonable.” United States v. Johnson, 
    445 F.3d 339
    ,
    341 (4th Cir. 2006); see Rita v. United States, ___ U.S. ___, 
    2007 WL 1771772146
     (U.S. June 21, 2007) (No. 06-5754).
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    “[A]    defendant       can    only    rebut   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 and
    citation omitted), cert. denied, 
    2007 U.S. LEXIS 8718
     (U.S. June
    29,   2007)    (No.       06-5439).         “A   sentence    may    be     procedurally
    unreasonable,        if    the   district        court   provides        an   inadequate
    statement of reasons.”           United States v. Moreland, 
    437 F.3d 424
    ,
    434 (4th Cir.) (internal quotation marks and citation omitted),
    cert. denied, 
    126 S. Ct. 2054
     (2006).
    “[A] district court’s explanation should provide some
    indication (1) that the court considered the § 3553(a) factors with
    respect to the particular defendant; and (2) that it has also
    considered the potentially meritorious arguments raised by both
    parties   about      sentencing.”            Montes-Pineda,        
    445 F.3d at 380
    (citations omitted).          “[I]n determining whether there has been an
    adequate explanation, [this Court does] not evaluate a court’s
    sentencing statements in a vacuum.”                 
    Id. at 381
    .          Rather, “[t]he
    context surrounding a district court’s explanation may imbue it
    with enough content for [this Court] to evaluate both whether the
    court considered the § 3553(a) factors and whether it did so
    properly.”     Id.
    Here the court sentenced Ellison at the bottom of the
    properly calculated guidelines’ range.                   Ellison fails to provide
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    any reason why he should have been sentenced below the guidelines’
    range.     Although the court did not articulate any substantive
    explanation      of     the       sentence,     it    specifically          noted       its
    consideration of the Booker decision and 
    18 U.S.C. § 3553
    (a) in
    imposing its sentence.              Because Ellison can not overcome the
    presumption of reasonableness, and the sentence is the minimum
    recommended      by   the     sentencing      guidelines      range,    we    find      the
    sentence to be reasonable.
    Finally, we have reviewed the issues raised in Ellison’s
    pro se supplemental brief and find them without merit.                           Based on
    the    foregoing,     we    grant    Ellison’s       motion    to    file    a    pro    se
    supplemental brief and affirm the judgment of the district court.
    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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