United States v. Ellison , 235 F. App'x 132 ( 2007 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
- 2 -
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).
- 3 -
“[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
- 4 -
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
- 5 -