United States v. Jeter , 377 F. App'x 335 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4814
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FREDRICK DEON JETER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:09-cr-00165-HFF-1)
Submitted: April 1, 2010 Decided: May 11, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William Corley Lucius, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fredrick Deon Jeter appeals from the 120-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of possession with intent
to distribute fifty grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2006). Jeter’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for
appeal, but questioning whether Jeter’s sentence is reasonable
in light of the 18 U.S.C. § 3553(a) (2006) sentencing factors.
Jeter filed a pro se supplemental brief, requesting a reduction
in sentence based on the sentencing disparity between powder
cocaine and cocaine base. Finding no reversible error, we
affirm.
Because Jeter presents his claim of sentencing error
for the first time on appeal, we review for plain error. United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010); see also Fed.
R. Crim. P. 52(b). To demonstrate plain error, a defendant must
show that: (1) there was an error; (2) the error was plain; and
(3) the error affected his “substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993). We are not required
to correct a plain error unless “a miscarriage of justice would
otherwise result,” meaning that “the error seriously affects the
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fairness, integrity, or public reputation of judicial
proceedings.” Id.
When reviewing a sentence, we must first ensure that
the district court did not commit any “significant procedural
error,” such as failing to consider the § 3553(a) factors or
failing to adequately explain the sentence. Gall v. United
States, 552 U.S. 38, 51 (2007). Once we have determined there
is no procedural error, we must consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id. If the sentence imposed is within
the appropriate Guidelines range, we consider it on appeal to be
presumptively reasonable. United States v. Go, 517 F.3d 316,
318 (4th Cir. 2008). The presumption may be rebutted by a
showing “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).
Our review of the record reveals that the district
court properly calculated Jeter’s applicable Guidelines range,
taking into account the ten-year statutory mandatory minimum
sentence. Critically, because the Government did not move for a
downward departure to reflect substantial assistance, the
district court had no authority to depart below the mandatory
minimum. 18 U.S.C. § 3553(e); Melendez v. United States, 518
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U.S. 120, 125-26 (1996). Furthermore, Jeter’s within-Guidelines
sentence is presumptively reasonable on appeal and Jeter has not
rebutted that presumption. Therefore, we find that the district
court committed no reversible error in sentencing Jeter to 120
months’ imprisonment.
In his pro se supplemental brief, Jeter requests a
reduction of sentence based on the sentencing disparity between
powder cocaine and cocaine base. However, Jeter may only seek
this relief by first filing a 18 U.S.C. § 3582(c)(2) (2006)
motion in the district court.
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 Jeter, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Jeter requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Jeter. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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