United States v. Reginald Anderson ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD SCOTT ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:08-cr-00035-gmw-pms-3)
Submitted: October 29, 2010 Decided: October 3, 2011
Before MOTZ, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Reginald Scott Anderson appeals from the 87-month
sentence imposed following his guilty plea to one count of
conspiracy to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006), and four counts of
possession with intent to distribute cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c) (2006). Finding no
error, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and the substantive
reasonableness of a sentence. Id.In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 49-51. We then
determine whether the district court considered the 18 U.S.C. §
3553(a) (2006) factors and any arguments presented by the
parties, treated the guidelines as advisory, selected a sentence
based on “clearly erroneous facts,” and sufficiently explained
the selected sentence. Gall, 552 U.S. at 51; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We then review
whether the district court made “an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 50; see United
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States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized assessment need not be elaborate
or lengthy, . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review”) (internal quotation marks omitted).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51). On appeal, we accord a sentence within the
properly calculated guidelines range a presumption of
reasonableness. United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008).
The district court followed the necessary procedural
steps in sentencing Anderson, properly calculating, treating as
advisory, and considering the Guidelines range; performing an
individualized assessment of the relevant § 3553(a) factors; and
stating in open court the reasons for its sentence. The court
acted within its discretion in considering Anderson’s request
for a reduced sentence in light of Kimbrough v. United States,
552 U.S. 85 (2007), as well as guidance from the Department of
Justice regarding the Administration’s position on the
crack/powder cocaine sentencing disparity. Anderson’s sentence,
which is at the low end of the advisory Guidelines range, is
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presumed on appeal to be reasonable, and Anderson has not
rebutted this presumption. We conclude that the district court
did not abuse its discretion in sentencing Anderson.
On appeal, Anderson asks us to vacate the judgment and
remand the case so that he might be sentenced pursuant to the
terms of the Fair Sentencing Act of 2010 (“FSA”). As we
recently held, however, the FSA does not apply retroactively.
See United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011)
(holding that the FSA did not apply retroactively to cases on
appeal), pet. for cert. filed, (Aug. 17, 2011) (No. 11-5912).
Accordingly, as Anderson was convicted and sentenced prior to
the effective date of the Act, he is not entitled to relief in
this case.
We therefore 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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