United States v. Marcus Drake ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS PHILLIP DRAKE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00111-MOC-DCK-1)
Submitted: November 20, 2019 Decided: December 12, 2019
Before KING, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Without the benefit of a plea agreement, Marcus Phillip Drake pled guilty to
conspiracy to distribute and to possess with intent to distribute 50 grams of actual
methamphetamine and 500 grams or more of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
846 (2012), and possession with intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine, also in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A). Based on a total adjusted offense level of 31 and a criminal
history category of I, Drake’s advisory Sentencing Guidelines range was 108 to 135
months’ imprisonment. * The district court granted Drake’s request for a downward
variance based on 18 U.S.C. § 3553(a)(6) (2012), imposing a 90-month term of
imprisonment.
On appeal, Drake’s attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning
whether the district court abused its discretion in declining to award the full downward
variance sought by Drake. Although advised of his right to file a pro se supplemental brief,
Drake has not done so. We affirm.
*
Because Drake received the benefit of the safety valve reduction, see U.S.
Sentencing Guidelines Manual §§ 2D1.1(b)(17), 5C1.2 (2016), the district court was able
to sentence him below the otherwise-operative statutory, mandatory minimum 10 years’
imprisonment.
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We review Drake’s downward variant sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). This court
first reviews for significant procedural error and, if the sentence is free from such error, we
then consider the substantive reasonableness of the sentence. Id. Procedural error includes
improperly calculating the defendant’s Guidelines range, treating the Guidelines range as
mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, or failing to
sufficiently explain the selected sentence. Id. We presume that a sentence within or below
the defendant’s properly calculated Guidelines range is substantively reasonable, United
States v. Susi, 674 F.3d 278, 289-90 (4th Cir. 2012), and this “presumption can only be
rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors,” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
We have reviewed the record and find that Drake’s sentence is both procedurally
and substantively reasonable. The district court properly calculated Drake’s advisory
Guidelines range and adequately explained its reasons for rejecting his request for a greater
downward variance. Nor do we find any basis in the record for overcoming the
presumption of substantive reasonableness accorded Drake’s below-Guidelines sentence.
In accordance with Anders, we have reviewed the record and have found no
meritorious issues for appeal. We therefore affirm the district court’s judgment. This court
requires that counsel inform Drake, in writing, of his right to petition the Supreme Court
of the United States for further review. If Drake 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
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was served on Drake. 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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