United States v. Burton , 340 F. App'x 897 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4229
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARON JOHNSON BURTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:06-cr-00052-jpj-pms-1)
Submitted: July 31, 2009 Decided: August 14, 2009
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant. Julia C. Dudley, United
States Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sharon Johnson Burton was convicted by a jury of
possession with intent to distribute cocaine and five grams or
more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2006); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2006). Burton
received concurrent sixty-three-month sentences. On appeal,
Burton raises two claims. First, Burton argues that the
district court should have instructed the jury on the lesser-
included offense of drug possession. Second, Burton argues that
the district court imposed an unreasonably long sentence.
This Court “review[s] a district court’s decision
whether to give a jury instruction for abuse of discretion.”
See United States v. Kennedy, 372 F.3d 686, 698 (4th Cir. 2004).
A district court's refusal to provide an instruction
requested by a defendant constitutes reversible error
only if the instruction: (1) was correct; (2) was not
substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so
important[] that failure to give the requested
instruction seriously impaired the defendant’s ability
to conduct his defense.
United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal
quotation marks and citation omitted). “For the defendant to be
entitled to a lesser-included offense [instruction], the proof
on the element that differentiates the two offenses must be
sufficiently in dispute to allow a jury consistently to find the
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defendant innocent of the greater and guilty of the lesser
offense.” United States v. Baker, 985 F.2d 1248, 1258-59 (4th
Cir. 1993). For an element to be “sufficiently in dispute,”
either “the testimony on the distinguishing element must be
sharply conflicting, or the conclusion as to the lesser offense
must be fairly inferable from the evidence presented.” United
States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (internal
quotation marks citation and omitted).
In this case, the district court did not abuse its
discretion by failing to instruct the jury on simple possession.
As the district court stated, Burton did not demonstrate that
she was drug user. None of the witnesses testified that he or
she had ever seen Burton either using drugs or under the
influence of drugs. See id. at 1112-13. At trial, Burton
apparently tried to blame her husband for the drug-trafficking
evidence, which included a total of more than 100 grams of
cocaine and methamphetamine, thirty-nine Xanax, marijuana,
digital scales, computers, three cell phones and $1156.
Therefore, we do not believe Burton’s intent to distribute was
placed sufficiently in dispute or that the evidence allowed a
fair inference of simple possession.
We now turn to Burton’s sentencing claim. Appellate
courts review sentences for reasonableness, applying an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
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38, __, 128 S. Ct. 586, 597-98 (2007); United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007). This court first considers
whether the district court committed any significant procedural
error, such as improperly calculating the advisory Guidelines
range. United States v. Evans, 526 F.3d 155, 161 (4th Cir.),
cert. denied, 129 S. Ct. 476 (2008). We then assess the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Id. In assessing a
sentence, we may presume a sentence within the advisory
Guidelines range to be reasonable. Gall, 128 S. Ct. at 597;
Pauley, 511 F.3d at 473. Moreover, we must give due deference
to the district court’s decision that the 18 U.S.C. § 3553(a)
(2006) factors justify the sentence. Id. Even if we would have
imposed a different sentence, this fact alone is insufficient to
justify reversing the district court. Evans, 526 F.3d at 160.
On appeal, Burton claims her sentence is greater than
necessary to comply with 18 U.S.C. § 3553(a). We are not
persuaded by Burton’s claim. Burton received a sentence at the
very bottom of the Guidelines range. Further, she does not give
any specific reason why the sentence was unreasonable nor does
she cite any particular factor that the district court failed to
consider. In short, we find that Burton has not rebutted the
appellate presumption that a Guidelines sentence is reasonable.
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For the reasons stated above, we affirm Burton’s
conviction and sentence. 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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