United States v. Anrique Zachery , 601 F. App'x 174 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANRIQUE ZACHERY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00046-RBH-2)
Submitted: January 21, 2015 Decided: February 4, 2015
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tristan Michael Shaffer, TRISTAN SHAFFER, ATTORNEY AT LAW,
Chapin, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anrique Zachery appeals from the criminal judgment
imposed after he pleaded guilty to conspiring to distribute and
possess with intent to distribute 500 grams or more of cocaine
and 280 grams or more of cocaine base, in violation of 21 U.S.C.
§ 846 (2012), and possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2012), and the resulting 300-month minimum sentence. On
appeal, Zachery’s counsel 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 Zachery’s
twenty-five year sentence was unconstitutionally excessive.
Zachery filed a supplemental pro se brief, claiming that the
district court failed to consider the § 18 U.S.C. 3553(a) (2012)
factors at sentencing. The Government did not file a response
brief. We affirm the judgment of the district court.
We review de novo challenges to sentences on Eighth
Amendment grounds. United States v. Cobler, 748 F.3d 570, 574
(4th Cir.), cert. denied, 135 S. Ct. 229 (2014). We “first must
determine that a ‘threshold comparison’ of the gravity of the
offense and the severity of the sentence ‘leads to an inference
of gross disproportionality.’” Id. (quoting Graham v. Florida,
560 U.S. 48, 59-60 (2010)). If Zachery establishes this
inference, we “then compare the defendant’s sentence with the
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sentences received by other offenders in the same jurisdiction
and with the sentences imposed for the same crime in other
jurisdictions.” Graham, 560 U.S. at 60.
Congress mandates a minimum five-year sentence for a
conviction under 18 U.S.C. § 924(c)(1)(A)(i), and further
mandates that it run consecutively to a sentence imposed for the
crime during which the firearm was possessed. 18 U.S.C.
§ 924(c)(1)(D)(ii). The district court complied with this
Congressional mandate in imposing a 300-month term of
imprisonment, which was the minimum it could impose by statute.
We conclude that Zachery fails to establish the
threshold inference that his sentence is grossly
disproportionate under the Eighth Amendment. “Severe, mandatory
penalties may be cruel, but they are not unusual in the
constitutional sense, having been employed in various forms
throughout our Nation’s history.” Harmelin v. Michigan, 501
U.S. 957, 994–95 (1991). Indeed, this court has held that
stacked mandatory sentences under § 924(c) do not contravene the
Constitution. See, e.g., United States v. Khan, 461 F.3d 477,
495 (4th Cir. 2006) (lengthy mandatory sentences imposed on
defendants by “count-stacking” provisions of 18 U.S.C. § 924(c)
did not constitute cruel and unusual punishment).
We review a challenge to the reasonableness of a
criminal sentence for abuse of discretion. Gall v. United
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States, 552 U.S. 38, 41 (2007); United States v. McManus, 734
F.3d 315, 317 (4th Cir. 2013). We first consider whether the
district court committed a significant procedural error. United
States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir. 2011). If
the sentence is procedurally reasonable, we then consider
whether it is substantively reasonable, taking into account the
totality of the circumstances and giving due deference to the
district court’s decision. Gall, 552 U.S. at 51. We presume
that a sentence within or below a properly calculated Sentencing
Guidelines range is substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). Zachery bears the burden to rebut this presumption
by showing that the sentence is unreasonable in light of the 18
U.S.C. § 3553(a) factors. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006).
Though a court must consider the statutory factors and
explain its sentence, it need not explicitly reference § 3553(a)
or discuss every factor on the record. United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The court need only
“set forth enough to satisfy the appellate court that [it] has
considered the parties’ arguments and has a reasoned basis” for
its decision. Rita v. United States, 551 U.S. 338, 356 (2007).
In his pro se supplemental brief, Zachery makes a
conclusory claim that the district court did not consider the
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§ 3553(a) factors. However, the record shows that the district
court adequately explained the basis for the sentence it
imposed, including its reasons for sentencing Zachery below the
range advised by the Guidelines and specifically referencing
factors outlined in § 3553(a). Furthermore, the court properly
calculated Zachery’s Guidelines range, treated it as advisory,
and provided an individualized assessment of Zachery’s case,
including its reasons for overruling his objections while
accepting his request for a variance. Thus, we discern no
procedural unreasonableness in Zachery’s sentence. Moreover, we
find that Zachery has offered no evidence to rebut the
presumption of substantive reasonableness accorded to his below-
Guidelines sentence. Accordingly, we conclude that the district
court did not abuse its discretion.
In accordance with Anders, we have reviewed the entire
record and have found no potentially meritorious grounds for
appeal. We therefore affirm Zachery’s conviction. This court
requires that counsel inform Zachery, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Zachery requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Zachery. We dispense with oral argument because
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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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