United States v. Byrd ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD BYRD, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:01-cr-00178-MR-1)
Submitted: October 16, 2009 Decided: January 15, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted James Edward Byrd, III of conspiracy
to distribute and possess with intent to distribute fifty grams
or more of crack cocaine, in violation of 21 U.S.C. § 846(2006), and the district court sentenced him to 240 months of
imprisonment. 1 In a prior appeal, we vacated Byrd’s sentence and
remanded for resentencing consistent with Gall v. United States,
552 U.S. 38, 128 S. Ct. 586 (2007). See United States v. Byrd,
278 F. App’x 277 (4th Cir. 2008) (No. 06-5162). At the
resentencing hearing, the district court imposed a 240-month
sentence. 2 On appeal, 3 Byrd challenges the reasonableness of his
sentence. We affirm.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall, 128 S. Ct. at 597. This
review requires appellate consideration of both the procedural
and substantive reasonableness of a sentence. Id. After
determining whether the district court properly calculated the
1
The initial sentence imposed by the district court was 360
months. See United States v. Byrd, 151 F. App’x 218 (4th Cir.
2005) (No. 04-4953) (vacating 360-month sentence and remanding
for resentencing).
2
The guidelines ranges was 360 months to life imprisonment
but became 240 months, the statutory maximum sentence. U.S.
Sentencing Guidelines Manual § 5G1.1(a) (2007).
3
Byrd also filed a pro se supplemental brief challenging
his sentence. We have carefully reviewed the claims raised
therein and find them to be without merit.
2
defendant’s advisory guidelines range, we must then consider
whether the district court considered the factors in 18 U.S.C.
§ 3553(a) (2006), analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.
at 596-97; see United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009). Finally, we review the substantive reasonableness
of the sentence. United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007).
Byrd’s counsel first asserts that the district court
procedurally erred in sentencing Byrd to 240 months because the
court viewed the guidelines range of 240 months as mandatory and
therefore sentenced Byrd under de facto mandatory guidelines.
Our review of the record convinces us that the district court
understood the advisory nature of the sentencing guidelines.
Next, counsel asserts that the district court failed
to address adequately the § 3553(a) factors, particularly
§ 3553(a)(6), by failing to take into account the need to
prevent unwarranted sentence disparities among co-defendants.
However, at the August 2008 sentencing hearing, the court
engaged in a colloquy with defense counsel about this very
factor. The court correctly found that Byrd and his
co-defendants were not similarly situated.
Finally, Byrd argues that his sentence is procedurally
unreasonable because the district court failed to explain
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adequately why it sentenced Byrd to double the sentences
received by his co-defendants. We review this claim for plain
error because, after being given an opportunity to object to the
sentence imposed by the district court, Byrd failed to challenge
the adequacy of the court’s explanation. To establish plain
error, Byrd “must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(reviewing unpreserved Rule 11 error). “The decision to correct
the error lies within our discretion, and we exercise that
discretion only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. at
343 (internal quotation marks and citations omitted).
We have carefully reviewed the sentencing transcript
and find that the district court did not err--plainly or
otherwise--in explaining its chosen sentence. “When rendering a
sentence, the district court ‘must make an individualized
assessment based on the facts presented.’” Carter, 564 F.3d at
328 (quoting Gall, 128 S. Ct. at 597). Thus, “‘[t]he sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007));
see United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007).
4
The district court did in fact discuss the relevant
§ 3553(a) factors, rejecting Byrd’s assertion that he should
receive a sentence similar to those of his co-defendants. In
addition, the court noted that Byrd was well spoken and had the
family support to be successful once released from prison. The
court also acknowledged Byrd’s post-sentencing rehabilitative
efforts but found that those efforts were not relevant to its
sentencing decision but, instead, would be taken into account by
the Bureau of Prisons in calculating Byrd’s good-time credits.
Although the district court did not mention specifically all of
the § 3553(a) factors, the court addressed the parties’
arguments and provided the individualized assessment required by
Carter.
Accordingly, we 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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