United States v. Shi Bin Dong , 498 F. App'x 361 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHI BIN DONG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00085-CCE-3)
Submitted: November 29, 2012 Decided: December 11, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles L. White, Greensboro, Greensboro, North Carolina, for
Appellant. Frank Joseph Chut, Jr., Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shi Bin Dong appeals from his convictions and 46-month
sentence entered pursuant to his guilty plea to conspiracy to
commit access device fraud and aggravated identity theft.
Dong’s 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 erred in imposing sentence. Neither Dong nor the
Government has filed a brief. We affirm.
Dong’s sentence is reviewed for reasonableness,
applying the abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the advisory Guidelines
range, we must decide whether the court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed the arguments presented by
the parties, and sufficiently explained the selected sentence.
Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325,
330 (4th Cir. 2009). If the sentence is free of significant
procedural error, we review the substantive reasonableness of
the sentence. Lynn, 592 F.3d at 575.
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Our review of the record shows that the district court
correctly calculated Dong’s Guidelines range, without objection;
analyzed the arguments presented by both sides; and sufficiently
explained the selected sentence. The court granted the
Government’s request for a downward departure under United
States Sentencing Guidelines Manual § 5K1.1 (2011) based on
Dong’s substantial assistance and gave sufficient reasoning for
the departure. To the extent Dong argues that the district
court erred in selecting the extent of its departure, this
decision is unreviewable on appeal. See United States v. Hill,
70 F.3d 321, 324 (4th Cir. 1995) (holding that extent of
departure is only reviewable if it resulted in a sentence
imposed in violation of law or resulted from an incorrect
application of the Guidelines). Based on the foregoing, we
conclude that the sentence is procedurally reasonable.
Turning to the substantive reasonableness of Dong’s
sentence, we presume that a sentence within a properly-
calculated Guidelines range is reasonable. Rita v. United
States, 551 U.S. 338, 351 (2007). Dong’s sentence was below the
bottom of the applicable Guidelines range and only five months
longer than the sentence requested by Dong. Dong has failed to
overcome the presumption of reasonableness accorded his sentence
because he has not identified any sentencing factor that would
warrant a different outcome. See United States v. Susi, 674
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F.3d 278, 289 (4th Cir. 2012) (holding that a below-Guidelines
sentence is entitled to a presumption of reasonableness).
In accordance with Anders, we have reviewed the entire
record for reversible error and have found none. Thus, we
affirm Dong’s convictions and sentence. This court requires
that counsel inform Dong in writing of his right to petition the
Supreme Court of the United States for further review. If Dong
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move this
court for leave to withdraw from representation. Counsel's
motion must state that a copy thereof was served on Dong. 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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