United States v. Under Seal ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4999
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
UNDER SEAL,
Defendant - Appellant.
No. 06-5000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
UNDER SEAL,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
Submitted: February 14, 2008 Decided: March 4, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John L. Machado, LAW OFFICE OF JOHN L. MACHADO, Washington, D.C.,
for Appellant. Barbara S. Skalla, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to a written plea agreement, Appellant pled
guilty to conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846 (2000) and conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h) (2000). Appellant was sentenced
to 135 months’ imprisonment for each offense, to run concurrently.
Finding no error, we affirm.
On appeal, counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but contending that Appellant’s
sentence was unreasonable. Appellant was advised of his right to
file a pro se supplemental brief, but he did not do so, and the
Government elected not to file a responsive brief.
There is no merit to Appellant’s contention that his
sentence is unreasonable. We will affirm a sentence imposed by the
district court as long as it is within the statutorily prescribed
range and is reasonable. United States v. Hughes, 401 F.3d 540(4th Cir. 2005). Reasonableness review focuses on whether the
district court abused its discretion. United States v. Pauley,
F.3d , 2007 WL 4555523 at *5 (4th Cir. Dec. 28, 2007). A
sentence maybe unreasonable for procedural or substantive reasons.
Id. An error of law or fact can render a sentence unreasonable.
United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,
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126 S. Ct. 2309 (2006). We review a district court’s factual
findings for clear error and its legal conclusions de novo. United
States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). Assuming the
sentence contains no significant procedural errors, we may presume
a sentence falling within the Guideline range to be reasonable.
Pauley, 2007 WL 4555523 at *4.
When sentencing a defendant, the district court must:
(1) properly calculate the Guideline range; (2) determine whether
a sentence within that range serves the § 3553(a) factors in light
of the arguments presented by the parties; (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. See Gall v. United States, 128 S. Ct. 586, 596-97
(2007). The sentencing court may not presume that the applicable
Guideline range is reasonable, but should explain any deviation
from that range, providing correspondingly stronger justification
in relation to the degree of variance from the Guideline range.
Id.While the sentencing court must consider the § 3553(a)
factors and explain its sentence, it need not explicitly reference
§ 3553 or discuss every factor on the record, particularly when the
court imposes a sentence within the Guideline range. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). One reason
that a sentence within an advisory range may be presumed to be
reasonable is that the most salient § 3553(a) factors are already
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incorporated into the Guideline determinations. Id. at 342-43; see
also Rita v. United States, 127 S. Ct. 2456, 2467 (2007) (“where
judge and Commission both determine that” a Guideline sentence is
appropriate, “that sentence likely reflects the § 3553(a)
factors”). A district court’s consideration of pertinent factors
may also be implicit in its ultimate ruling. See United States v.
Johnson, 138 F.3d 115, 119 (4th Cir. 1998); United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995).
The district court’s explanation should provide some
indication that it considered the § 3553(a) factors as to the
defendant and the potentially meritorious arguments raised by the
parties at sentencing. United States v. Montes-Pineda, 445 F.3d
375, 380 (4th Cir. 2006). “[W]hen a judge decides simply to apply
the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation.” Rita, 127 S. Ct. at 2468.
“Circumstances may well make clear that the judge rests his
decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence (in terms of § 3553(a) and other
congressional mandates) in the typical case, and that the judge has
found that the case before him is typical.” Id.
Here, the district court appropriately calculated the
Guideline range, considered the § 3553(a) factors, and imposed a
sentence at the lowest end of the Guideline range. Therefore,
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under the standards expressed above, Appellant’s sentence is
reasonable.
Pursuant to Anders, we have examined the entire record
and find 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 Appellant requests
that such 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 Appellant.
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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