United States v. Junior Pardue , 565 F. App'x 276 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUNIOR LEE PARDUE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00073-RLV-DSC-24)
Submitted: March 19, 2014 Decided: April 10, 2014
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Junior Lee Pardue pled guilty to conspiracy to
distribute, possess with intent to distribute, and manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2012). The district court sentenced him to a
total of 100 months in prison and four years of supervised
release. On appeal, counsel for Pardue filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting that
there are no meritorious issues for appeal, but questioning the
reasonableness of the sentence. Pardue has not filed a
supplemental pro se brief, despite notice of his right to do so.
We affirm Pardue’s conviction and sentence.
In reviewing a sentence, we must first ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2012) factors, or failing to adequately explain the sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). The district
court is not required to “robotically tick through § 3553(a)’s
every subsection,” United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006), but “must place on the record an individualized
assessment based on the particular facts of the case before it”
that is sufficient to permit appellate review. United States v.
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Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted).
If the defendant did not argue for a sentence
different than the one imposed, our review is for plain error.
See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).
But “[i]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will “reverse
unless we conclude that the error was harmless.” Id. at 576.
In assessing the district court’s application of the Guidelines,
we review the district court’s findings of fact for clear error.
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
Only if we find the sentence procedurally reasonable can we
consider the substantive reasonableness of the sentence imposed.
Carter, 564 F.3d at 328. We apply a presumption of
reasonableness to a within — Guidelines sentence. United States
v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
At sentencing, Pardue argued that his role in the
offense was minor such that he was entitled to a reduction in
his total offense level. We conclude that the district court
did not err in overruling the objection. See U.S. Sentencing
Guidelines Manual § 3B1.2(b) & cmt. n.5 (describing two-level
reduction available for minor participant); United States v.
Powell, 680 F.3d 350, 359 (4th Cir.) (observing that “critical
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inquiry” in assessing § 3B1.2 adjustment is whether defendant’s
conduct is essential to commission of offense), cert. denied,
133 S. Ct. 376 (2012). Furthermore, the district court provided
an adequate, individualized explanation to support the sentence.
See Carter, 564 F.3d at 330. Our review of the record therefore
leads us to conclude that Pardue’s within-Guidelines sentence
was neither procedurally nor substantively unreasonable. See
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (presumption of reasonableness rebutted only upon showing
that sentence is unreasonable when measured against § 3553(a)
factors).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Pardue, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Pardue 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 Pardue.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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