United States v. Donald Smith , 563 F. App'x 234 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4521
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD SCOTT SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:12-cr-00383-JAB-1)
Submitted: March 25, 2014 Decided: March 27, 2014
Before GREGORY, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James E. Quander, Jr., Winston-Salem, North Carolina, for
Appellant. Timothy Nicholas Matkins, Special Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Scott Smith pled guilty, pursuant to a plea
agreement, to armed robbery involving a controlled substance, in
violation of 18 U.S.C. § 2118(a), (c)(1) (2012), and brandishing
a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2012). The district court sentenced Smith
to a total sentence of 114 months’ imprisonment, reflecting a
thirty-month term on the robbery count, which was the bottom of
the advisory Guidelines range, and a consecutive eighty-four-
month term on the firearm count, which was the statutory
mandatory minimum sentence. Smith timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal, but questioning whether Smith’s
sentence is reasonable. Smith was advised of his right to file
a pro se supplemental brief, but he did not file one. Finding
no error, we affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range[,] . . . under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
standard of review involves two steps; under the first, we
examine the sentence for significant procedural errors, and
under the second, we review the substance of the sentence.
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United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007)
(analyzing Gall, 552 U.S. at 50-51). Significant procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.”
Gall, 552 U.S. at 51.
If there are no significant procedural errors, we then
consider the substantive reasonableness of the sentence,
“tak[ing] into account the totality of the circumstances.” Id.
If the sentence is within or below the properly calculated
Guidelines range, this Court applies a presumption on appeal
that the sentence is substantively reasonable. United States v.
Weon, 722 F.3d 583, 590 (4th Cir. 2013). Such a presumption is
rebutted only if the defendant shows “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted). We have reviewed the
record and conclude that Smith’s sentence is both procedurally
and substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
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We therefore affirm the district court’s judgment. This court
requires that counsel inform Smith, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Smith 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 Smith. 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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