United States v. Byrd , 425 F. App'x 262 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4838
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ANDREW BYRD, a/k/a Mecca,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty,
Jr., Chief District Judge. (1:09-cr-00408-JAB-1)
Submitted: April 14, 2011 Decided: April 27, 2011
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Heather Golias, LAW OFFICE OF HEATHER GOLIAS, New Haven,
Connecticut, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Andrew Byrd pleaded guilty to possession with
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a) (2006), and carrying a firearm during and in relation
to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c) (2006). The district court sentenced Byrd to a total
of 262 months of imprisonment, and Byrd now appeals. For the
reasons that follow, we affirm.
Byrd first argues that the district court failed to
comply with Fed. R. Crim. P. 32(i)(3)(B) by failing to rule on
alleged objections Byrd asserted to the factual findings and to
his prior convictions used as a basis for imposition of the
career offender Guidelines in the presentence report (“PSR”).
As Byrd failed to raise an objection based on Rule 32 at
sentencing, we review this issue for plain error. See Puckett
v. United States, ___ U.S. ___, ___, 129 S. Ct. 1423, 1428-29
(2009); see also United States v. Cook, 550 F.3d 1292, 1297-98
(10th Cir. 2008) (stating that plain-error review applies where
a defendant fails to make a Rule 32(i)(3)(B) objection in the
district court). To prevail under this standard, Byrd must
establish that a clear or obvious error by the district court
affected his substantial rights. Puckett, 129 S. Ct. at 1429.
An error affects a defendant’s substantial rights “if the error
affect[s] the outcome of the district court proceedings.”
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United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010)
(internal quotation marks omitted). To satisfy this requirement
in the sentencing context, Byrd “must show that he would have
received a lower sentence had the error not occurred.” Id.Rule 32(i)(3)(B) of the Federal Rules of Criminal
Procedure requires a district court “-for any disputed portion
of the presentence report or other controverted matter-[to] rule
on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R.
Crim. P. 32(i)(3)(B); see United States v. Morgan, 942 F.2d 243,
245 (4th Cir. 1991) (Rule 32 “clearly requires the district
court to make a finding with respect to each objection a
defendant raises to facts contained in the [PSR] before it may
rely on the disputed fact in sentencing.”). The purpose of the
rule “is to ensure that a record is made as to how the district
court ruled on any alleged inaccuracy in the PSR.” United
States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994). We have
concluded, however, that a district court “need not articulate
[findings] as to disputed factual allegations with minute
specificity.” United States v. Bolden, 325 F.3d 471, 497 (4th
Cir. 2003) (internal quotation marks and citation omitted).
Moreover, the district court may make the required
finding by “expressly adopt[ing] the recommended findings
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contained in the presentence report.” Morgan, 942 F.2d at 245(citations omitted). The court may adopt “the PSR’s findings in
toto” if “the context of the ruling makes clear that the
district court intended [by the adoption] to rule on each of the
alleged factual inaccuracies.” Walker, 29 F.3d at 911 (internal
quotation marks omitted). We have thoroughly reviewed the
record and conclude that the district court did not commit plain
error.
Byrd next argues that the sentence is procedurally and
substantively unreasonable. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so doing, we first examine the
sentence for “significant procedural error,” including “failing
to calculate (or improperly calculating) the Guidelines range,
treating the guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence . . . .” Gall, 552 U.S. at 51. We
then “‘consider the substantive reasonableness of the sentence
imposed.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (quoting Gall, 552 U.S. at 51). If the sentence is within
the Guidelines range, we apply a presumption of reasonableness.
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Rita v. United States, 551 U.S. 338, 346-59 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence).
Our review of the record leads us to conclude that the
sentence is procedurally and substantively reasonable. The
court properly calculated the advisory Guidelines range,
considered the Guidelines along with the statutory sentencing
factors, and explained the sentence. See United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (district court must
conduct an “individualized assessment” of the particular facts
of every sentence, whether the court imposes a sentence above,
below, or within the guidelines range). In addition, we
conclude that Byrd has failed to overcome the presumption of
reasonableness we accord his within-Guidelines sentence.
Accordingly, we affirm the judgment of the district
court. 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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