United States v. Green , 284 F. App'x 25 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4173
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISRAEL GREEN, JR., a/k/a Isreal Green, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:02-cr-00398-DCN-1)
Submitted: May 28, 2008 Decided: July 14, 2008
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, Peter T. Phillips, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Israel Green, Jr., appeals his twenty-four month sentence
imposed after the district court terminated his supervised release
after several violations. Green’s sentence was twelve months
higher than what was recommended by the Sentencing Guidelines based
on the violations and his criminal history category. He argues the
district court denied him due process because it imposed the higher
sentence without giving him notice. He also claims the sentence
was unreasonable. We affirm.
Green did not object to the sentence and thus any review
is for plain error. Under the plain error standard, Green must
show: (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). We find no error with the court’s
decision to sentence Green more than what was recommended by the
Guidelines without giving him notice. See United States v. Shaw,
180 F.3d 920 (8th Cir. 1999); United States v. McClanahan, 136 F.3d
1146 (7th Cir. 1998). The Supreme Court in Gall v. United States,
128 S. Ct. 586 (2007), did not impose this new sentencing
requirement.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall, 128 S. Ct. at 597; see
also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
We must first ensure that the district court committed no
- 2 -
procedural error, such as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence — including an explanation for any
deviation from the Guideline range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. at 597.
“Substantive reasonableness review entails taking into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range.” Pauley, 511 F.3d at 473 (internal
quotation marks omitted). While the court may presume a sentence
within the Guidelines range to be reasonable, it may not presume a
sentence outside the range to be unreasonable. Gall, 128 S. Ct. at
597. Moreover, it must give due deference to the district court’s
decision that the § 3553(a) factors justify imposing a variant
sentence and to its determination regarding the extent of any
variance. Even if the reviewing court would have reached a
different sentencing result on its own, this fact alone is
insufficient to justify reversal of the district court. Pauley,
511 F.3d at 473-74.
Because we find Green’s notice argument to be without
merit, we find no procedural error at sentencing. We further find
the district court sufficiently explained its reasoning for giving
- 3 -
a sentence higher than what was recommended under the Guidelines.
We find no abuse of discretion.
Accordingly, we affirm the sentence. 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
- 4 -