United States v. Byard , 311 F. App'x 614 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4423
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MILTON BYARD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:06-cr-00165-5)
Submitted: January 23, 2009 Decided: February 17, 2009
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Milton Byard pled guilty to one count of conspiring to
distribute a quantity of cocaine, in violation of 21 U.S.C.
§ 846 (2006). The district court properly calculated Byard’s
advisory Guidelines range to be forty-six to fifty-seven months
of imprisonment, and sentenced him to serve forty-six months.
Byard appeals, alleging his sentence is procedurally
unreasonable because the district court did not sufficiently
consider the 18 U.S.C. § 3553(a) (2006) sentencing factors. * We
have reviewed the record and affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence to determine whether it is unreasonable,
applying a “deferential abuse-of-discretion standard.” Gall v.
United States, 128 S. Ct. 586, 591, 594 (2007). A district
court must engage in a multi-step process at sentencing. First,
the sentencing court must calculate the appropriate Guidelines
range by making any necessary factual findings. Id. at 596.
Then the court should afford the parties “an opportunity to
argue for whatever sentence they deem appropriate.” Id. Next,
it should consider the resulting advisory sentencing range in
conjunction with the factors set out in 18 U.S.C. § 3553(a), and
*
Byard does not challenge the calculation of his advisory
Guidelines range.
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determine whether the § 3553(a) factors support the sentence
requested by either party. Id. Consideration of the factors in
§ 3553(a) does not require the sentencing court to “robotically
tick through” every subsection of § 3553(a). United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006) (internal
quotation marks and citation omitted).
To determine whether a sentencing court abused its
discretion, we undertake a two-part analysis. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). First, we examine
the sentence for “significant procedural errors,” and second, we
evaluate the substance of the sentence. Id. Significant
procedural errors include “‘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 . . . .’” Id. (quoting
Gall, 128 S. Ct. at 597). “Substantive reasonableness review
entails taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” Id. (quoting Gall, 128 S. Ct. at 597). An appellate
court may presume a sentence within the Guidelines range to be
reasonable. Rita v. United States, 551 U.S. 338, __, 127 S. Ct.
2456, 2459, 2462 (2007).
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Here, the district court properly calculated Byard’s
Guidelines range and adequately noted its consideration of the
§ 3553(a) sentencing factors. We find no abuse of discretion in
the district court’s decision to sentence Byard at the bottom of
the Guidelines range. Accordingly, we affirm the district
court’s judgment. 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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