United States v. Brown , 363 F. App'x 995 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4319
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICK MAURICE BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cr-00120-FDW-1)
Submitted: January 8, 2010 Decided: February 2, 2010
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frederick Maurice Brown appeals from the 121-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of conspiracy to possess
with intent to distribute cocaine and cocaine base in violation
of 21 U.S.C. § 846 (2006). Brown’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether the district court sufficiently articulated
the reasons for Brown’s sentence. Brown was advised of his
right to file a pro se brief, but has not done so. The
Government has not filed a brief. Finding no error, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and the substantive
reasonableness of a sentence. Id.In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 552 U.S. at 49-51.
We then determine whether the district court failed to consider
the 18 U.S.C. § 3553(a) (2006) factors and any arguments
presented by the parties, treated the guidelines as mandatory,
selected a sentence based on “clearly erroneous facts,” or
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failed to sufficiently explain the selected sentence. Id. at
51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
We then review whether the district court considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and made “an individualized assessment
based on the facts presented.” Gall, 552 U.S. at 50; 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” (internal quotation marks omitted)).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51). This court accords a sentence within the
properly calculated guidelines range an appellate presumption of
reasonableness. United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). Such a
presumption can be rebutted only by showing “that the sentence
is unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
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The district court followed the necessary procedural
steps in sentencing Brown, properly calculating, treating as
advisory, and considering the guidelines range, performing an
individualized assessment of the relevant § 3553(a) factors, and
stating in open court the reasons for its sentence. Brown’s
sentence, which is at the low end of the applicable guidelines
range and below the statutory maximum of life imprisonment, is
presumed on appeal to be reasonable, and Brown does not rebut
this presumption. We conclude that the district court did not
abuse its discretion in sentencing Brown.
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 her 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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