United States v. Tony Commander , 524 F. App'x 39 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4749
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONY TYRELL COMMANDER, a/k/a Mook,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (2:11-cr-00031-FL-1)
Submitted: April 22, 2013 Decided: May 13, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Burell Shella, SHELLA, HARRIS & AUS, PC, Durham, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Tyrell Commander appeals the criminal judgment
imposing a 360-month sentence following his guilty plea to
conspiracy to distribute and possess with intent to distribute
280 grams of cocaine base. On appeal, Commander’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious issues for appeal
but questioning whether the court abused its discretion in
sentencing Commander. Commander was informed of his right to
file a supplemental pro se brief but has not done so. The
Government has declined to file a response brief. We affirm.
We review a sentence for reasonableness, applying a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court committed no “significant procedural error,”
including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2006)
factors, and inadequate explanation of the sentence
imposed. United States v. Lynn, 592 F.3d 572, 575 (4th Cir.
2010). If we find the sentence procedurally reasonable, we also
must examine the substantive reasonableness of the sentence,
considering the totality of the circumstances. Gall, 552 U.S.
at 51. The sentence imposed must be “sufficient, but not
greater than necessary,” to satisfy the purposes of
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sentencing. See 18 U.S.C. § 3553(a). A within-Guidelines
sentence is presumed reasonable on appeal, and the defendant
bears the burden to “rebut the presumption by demonstrating 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 discern no abuse of discretion here. The district
court properly calculated Commander’s Guidelines range,
addressed the parties’ sentencing arguments, and engaged in a
thorough balancing of the § 3553(a) factors. The court imposed
a sentence within the statutory and Guidelines ranges and
specifically grounded the sentence in Commander’s history and
characteristics, the seriousness of the offense, and the need
for deterrence and protection of the public. The court
appropriately credited Commander for his prior state
sentences, see U.S. Sentencing Guidelines Manual § 5K2.23
(2011), while selecting a sentence at the bottom of the
Guidelines range, as requested by counsel. We further conclude,
based on the factors adduced at sentencing, that Commander did
not rebut the presumption of reasonableness accorded his within-
Guidelines sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal
with regard to either Commander’s conviction or his sentence.
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We therefore affirm the district court’s judgment. This court
requires that counsel inform Commander, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Commander 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 Commander.
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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