United States v. Rush , 369 F. App'x 515 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4595
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS ALLEN RUSH,
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. (1:08-cr-00391-JAB-1)
Submitted: February 24, 2010 Decided: March 11, 2010
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Allen Rush appeals from the 120-month sentence
imposed following his guilty plea, pursuant to a written plea
agreement, to one count of distribution of fifty-six grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)
(2006). Rush’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 Rush’s
sentence is reasonable in light of the 18 U.S.C. § 3553(a)
(2006) sentencing factors. Rush was advised of his right to
file a pro se brief, but has not done so. Finding no reversible
error, we affirm.
Consistent with United States v. Booker, 543 U.S. 220(2005), the district court is required to follow a multi-step
process at sentencing. First, it must calculate the proper
sentencing range prescribed by the Guidelines. Gall v. United
States, 552 U.S. 38, 49 (2007); see also United States v. Abu
Ali, 528 F.3d 210, 260 (4th Cir. 2008), cert. denied, 129 S. Ct.
1312 (2009). It must then consider that range in light of the
parties’ arguments regarding the appropriate sentence and the
factors set out in § 3553(a) before imposing its sentence.
Gall, 552 U.S. at 49-50; see also Abu Ali, 528 F.3d at 260.
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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, 552 U.S. at
51. 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 Rush’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
U.S. 120, 125-26 (1996). Furthermore, Rush’s within-Guidelines
sentence is presumptively reasonable on appeal and Rush has not
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rebutted that presumption. Therefore, we find that the district
court committed no reversible error in sentencing Rush to 120
months’ imprisonment.
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 Rush, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Rush 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
Rush. 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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