United States v. Francis ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4450
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANKLIN DELANO FRANCIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:08-cr-01262-CMC-1)
Submitted: December 2, 2009 Decided: January 4, 2010
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. W. Walter Wilkins, United States
Attorney, Anne Hunter Young, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin Delano Francis pled guilty to illegal
reentry, 8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to
a term of forty-one months imprisonment. Francis appeals his
sentence, contending that the district court erroneously ruled
that it could not consider fast-track disparity as a reason to
vary below the advisory guideline range, and that his within-
guideline sentence was unreasonable as a result. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.After determining whether the district court properly calculated
the defendant’s advisory guideline range, we consider whether
the district court considered the § 3553(a) factors, analyzed
the arguments presented by the parties, and sufficiently
explained the selected sentence. Id.; see United 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”). Finally, we review the substantive reasonableness of
the sentence, “taking into account the totality of the
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circumstances[.]” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007).
Francis contends that the district court failed to
consider fast-track disparity as a reason to impose a below-
guidelines sentence, which rendered his sentence unreasonable.
However, the record clearly demonstrates that the district court
considered a variance based on fast-track disparity and decided
that it would not be justified in his case. The court
appropriately treated the guidelines as advisory, considered the
guidelines range and the factors in § 3553(a), then explained
why a sentence below the guidelines range was not warranted.
Thus, the district court committed no procedural errors.
With respect to the substantive reasonableness of
Francis’ sentence, we presume that a sentence imposed within the
properly calculated guidelines range is reasonable. Rita v.
United States, 551 U.S. 338, 347 (2007) (upholding presumption
of reasonableness for within-guidelines sentence). Francis
contends that the district court should have imposed a below-
guideline sentence, relying on the First Circuit’s decision to
affirm, in United States v. Rodriguez, 527 F.3d 221 (1st Cir.
2008), a downward variance sentence intended to compensate for
the lack of a fast-track program in that district. The district
court considered Rodriguez, but decided against a variance and
explained its reasoning. Applying the presumption of
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reasonableness to Francis’ within-guidelines sentence, which
Francis has failed to rebut on appeal, we conclude that the
district court did not abuse its discretion in sentencing him to
a forty-one-month sentence and that the sentence is reasonable.
We therefore affirm the sentence imposed by 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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