United States v. Timothy Sutphin , 442 F. App'x 14 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5058
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TIMOTHY NORMAN SUTPHIN,
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-00129-JAB-1)
Submitted: June 30, 2011 Decided: August 2, 2011
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Carlyle Sherrill, III, SHERRILL & CAMERON, PLLC, Salisbury,
North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Norman Sutphin appeals from his conviction and
235-month sentence, entered pursuant to his guilty plea to
conspiracy to distribute methamphetamine. On appeal, Sutphin’s
attorney has filed an Anders v. California, 386 U.S. 738 (1967)
brief, contending that there are no meritorious issues on
appeal, but nevertheless arguing that the sentence imposed was
procedurally unreasonable because the district court failed to
consider the 18 U.S.C.A. § 3553 (West 2000 & Supp. 2011) factors
when imposing sentence. Neither the Government nor Sutphin
filed a brief. We affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th
Cir.), cert. denied, 130 S. Ct. 290 (2009). In determining the
procedural reasonableness of a sentence, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the § 3553(a) factors, analyzed any
arguments presented by the parties, and sufficiently explained
the selected sentence. Gall, 552 U.S. at 51.
“Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
2
325, 330 (4th Cir. 2009) (internal quotation marks omitted). In
evaluating the district court’s explanation of a selected
sentence, we have held that the district court “need not
robotically tick through § 3553(a)’s every subsection,” but need
only “provide [this court] an assurance that the sentencing
court considered the § 3553(a) factors with regard to the
particular defendant.” United States v. Moulden, 478 F.3d 652,
657 (4th Cir. 2007) (internal quotation marks and citation
omitted). On appellate review, we will not evaluate the
adequacy of the sentencing court’s explanation for its sentence
“in a vacuum,” but rather will consider “[t]he context
surrounding [its] explanation.” United States v. Montes-Pineda,
445 F.3d 375, 381 (4th Cir. 2006).
Sutphin stated no objection to the presentence report
(“PSR”) or to the advisory Guidelines range calculation within
which he was sentenced. At sentencing, defense counsel sought a
sentence at the low end of the Guidelines range (235-293
months), but did not explicitly reference any specific § 3553(a)
factors. Thus, our review is for plain error. United States v.
Lynn, 592 F.3d 572, 579-80 (4th Cir. 2010).
We find that Sutphin fails to demonstrate that the
district court’s explanation supporting its chosen sentence was
insufficient. Sutphin made no objections to the findings and
calculations in the PSR, which the court explicitly adopted.
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The court heard and considered counsel’s argument advancing
Sutphin’s personal circumstances and requesting a sentence at
the low end of the Guidelines range. The court then heard from
Sutphin himself. The court stated that it considered the
advisory Guidelines range to be appropriate, provided reasons
for the chosen sentence, * and imposed the sentence requested by
Sutphin. Accordingly, despite the rather abbreviated nature of
the sentencing hearing and the district court’s failure to
explicitly reference § 3553, we conclude that there was no plain
error in the district court’s imposition of sentence.
In accordance with Anders, we have examined the entire
record in this case for meritorious issues and found none.
Accordingly, we affirm Sutphin’s conviction and sentence. This
court requires that counsel inform Sutphin in writing of his
right to petition the Supreme Court of the United States for
further review. If Sutphin requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may motion this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Sutphin. We dispense with oral argument because
*
Indeed, the district court’s reasons were appropriate
factors for consideration under § 3553. See 18 U.S.C.A. § 3553(listing inter alia “history and characteristics of the
defendant”).
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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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