United States v. Evans , 242 F. App'x 928 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY LAMAR EVANS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:99-cr-00126)
Submitted: May 21, 2007 Decided: July 6, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia, for
Appellant. Charles T. Miller, United States Attorney, John J.
Frail, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Lamar Evans was convicted by a jury of aiding and
abetting the possession with intent to distribute cocaine base in
violation of 18 U.S.C. § 2 (2000); 21 U.S.C. § 841(a)(1) (2000) and
sentenced to 188 months in prison and three years of supervised
release. On appeal, we affirmed Evans’s conviction and sentence.
See United States v. Evans, 102 F. App’x 836 (4th Cir. 2004)
(unpublished). Evans subsequently moved to vacate his sentence
under 28 U.S.C. § 2255 (2000), and the district court ordered that
he be resentenced in accordance with United States v. Booker, 543
U.S. 220 (2005). At Evans’s resentencing, the district court again
sentenced him to 188 months in prison and three years of supervised
release. On appeal, Evans contends the district court erred by
sentencing him based on facts not found by the jury beyond a
reasonable doubt, and his sentence at the low end of his advisory
guideline range was unreasonable. We affirm.
We will affirm the 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).
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 statutory limitations; and
(4) explain its reasons for selecting the sentence, especially a
- 2 -
sentence 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 guideline range is
presumptively reasonable. Id. at 457. In considering whether the
sentence is reasonable, 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).
Based on its findings by a preponderance of the evidence,
the district court concluded Evans was responsible for 340.2 grams
of cocaine base, resulting in a base offense level of thirty-four
under U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(3)
(2003), and that a two-level enhancement under USSG § 2D1.1(b)(1)
for possession of a firearm should be applied. With a total
offense level of thirty-six and criminal history category I, the
advisory guideline range was 188 to 235 months. Evans does not
challenge the facts underlying these calculations but argues the
district court violated the Sixth Amendment by sentencing him based
on facts not found by the jury beyond a reasonable doubt. We find
no error. See United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006).
Evans next contends his sentence is unreasonable, because
it “disregards § 3553 factors regarding his age, prior criminal
record, and the history of his case.” We disagree. In sentencing
Evans to the low end of his advisory guideline range, the district
- 3 -
court noted it considered not only the nature and circumstances of
the offense but also Evans’s history and characteristics. While
the court found it regrettable that Evans would be subject to a
sentence of such length considering his young age and relatively
minor criminal history, the court reasonably concluded a sentence
within the advisory range was appropriate in this case.
The court noted a sentence within the range reflected not
only the seriousness of the offense but promoted respect for the
law; provided just punishment for the offense; adequately deterred
future criminal conduct; protected the public from future crimes;
and allowed Evans to receive educational and vocational training.
The court found there was no unwarranted sentencing disparity
between Evans’s sentence and that of his co-defendant, based on the
co-defendant’s substantial assistance to the Government. Taking
into account all of the § 3553(a) factors, the court reasonably
found Evans’s age and criminal history did not justify a variance,
but that a sentence at the low end of the range was appropriate.
We therefore affirm the district court’s judgment. 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
- 4 -