United States v. Washington ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CAREY DEVON WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:03-cr-00125-BO)
Submitted: June 11, 2007 Decided: July 9, 2007
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan Dubois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank DeArmon Whitney, United States Attorney, Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carey Devon Washington appeals his sentence to 188 months
in prison and five years of supervised release after pleading
guilty to conspiracy to distribute and to possess with intent to
distribute more than fifty grams of cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 846 (2000). Washington’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting, in his opinion, there are no meritorious grounds
for appeal but raising the issue of whether the district court
erred in sentencing Washington under a de facto mandatory guideline
system preventing the court from giving adequate weight to all of
the sentencing factors under 18 U.S.C. § 3553(a) (2000). The
Government has not filed an answering brief. Washington was
advised of his right to file a pro se supplemental brief but has
not done so. Finding no reversible error, we affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
Although the guidelines are no longer mandatory, they must still be
consulted and taken into account when sentencing. United States v.
Booker, 543 U.S. 220, 264 (2005). In sentencing a defendant, the
district court must: (1) properly calculate the guideline range;
(2) determine whether a sentence within that range serves the
factors under 18 U.S.C. § 3553(a) (2000); (3) implement mandatory
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statutory limitations; and (4) explain its reasons for selecting a
sentence, especially one outside the range. United States v.
Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006). A sentence within a properly calculated range is
presumed to be reasonable. Id. at 457. This presumption can only
be rebutted by showing the sentence is unreasonable when measured
against the § 3553(a) factors. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006), pet. for cert. filed, __ U.S.L.W. __
(July 21, 2006) (No. 06-5439). While a district court must
consider the various factors and explain its sentence, it need not
explicitly reference § 3553 or discuss every factor on the record.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Initially, Washington contends this court’s presumption
of reasonableness accorded to post-Booker sentences imposed within
a properly calculated guideline range is unconstitutional. This
court’s precedent, however, forecloses this argument. See, e.g.,
Montes-Pineda, 445 F.3d at 379; Johnson, 445 F.3d at 341-42; United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006); Green, 436 F.3d at 457. Because one panel of
this court cannot overrule another, we decline Washington’s
invitation to ignore established authority. See United States v.
Chong, 285 F.3d 343, 346-47 (4th Cir. 2002).
Washington next contends that the district court erred by
failing to give adequate weight to all of the sentencing factors
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under 18 U.S.C. § 3553(a) in his case. We disagree. First, the
court properly calculated Washington’s advisory guideline range.
The probation officer determined his base offense level was thirty-
two, and she added two levels for obstruction of justice based on
Washington’s failure to appear at his previous sentencing hearing.
With a total offense level of thirty-four and criminal history
category III, the guideline range was 188 to 235 months. Although
Washington objected to not receiving a reduction for acceptance of
responsibility, the court properly overruled the objection. See
United States v. Hudson, 272 F.3d 260 (4th Cir. 2001).
In making its determination, the district court asked
about the details of Washington’s flight and his cooperation with
the Government. His counsel informed the court that although he
failed to appear for his previous sentencing hearing, he remained
in the area working for a legitimate business. However, he did not
turn himself in but was apprehended by authorities. Although he
gave some information to the Government, his efforts to cooperate
were unsuccessful in providing substantial assistance. The court
sentenced Washington to the low end of his advisory guideline range
based on his cooperation and the significant increase in the range
associated with his non-appearance at sentencing. On appeal,
Washington contends that the district court failed to give full
weight to the mitigating factors present in his case, namely, the
factors associated with his flight. However, the court took these
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factors into account when sentencing him to the low end of his
advisory guideline range, and Washington has not rebutted the
presumption that his sentence is reasonable.
In accordance with Anders, we have reviewed the entire
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 his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client.
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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