United States v. Donald Marsh , 479 F. App'x 538 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4866
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD HEATH MARSH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00353-NCT-1)
Submitted: June 22, 2012 Decided: July 6, 2012
Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Heath Marsh pled guilty to distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and
(b)(1) (2006). The district court varied downward from Marsh’s
Guidelines sentencing range and sentenced him to one hundred
forty-five months’ imprisonment. On appeal, 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 Marsh’s sentence is reasonable. Marsh filed
a pro se brief, arguing the district court violated his right to
allocute, violated his right to counsel of his choosing at
sentencing, and violated his right to call a witness in his
defense at sentencing. The Government did not file a brief. We
affirm.
We review Marsh’s sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 41
(2007). In reviewing a sentence, we must first determine
whether the district court committed any significant procedural
errors, examining the record for miscalculation of the
Guidelines range, treatment of the Guidelines as mandatory,
failure to consider the 18 U.S.C. § 3553(a) (2006) factors, the
selection of a sentence based on clearly erroneous facts, and
whether the court sufficiently explained the selected
sentence. Id. at 51.
2
If we find no significant procedural error, we next
assess the substantive reasonableness of the sentence. United
States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). In
doing so, we “examine the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010). We accord a presumption of reasonableness to a
below-Guidelines sentence. United States v. Susi, 674 F.3d 278,
289-90 (4th Cir. 2012).
After thoroughly reviewing the record, we conclude
that Marsh’s below-Guidelines sentence was both procedurally and
substantively reasonable. We have reviewed the arguments
asserted by Marsh in his pro se supplemental brief and conclude
they are without merit. In accordance with Anders, we have
reviewed the record in this case and have found no meritorious
issues for appeal. We therefore affirm Marsh’s conviction and
sentence. This court requires that counsel inform Marsh in
writing, of the right to petition the Supreme Court of the
United States for further review. If Marsh 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 was served on Marsh.
3
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
4