United States v. Everhart ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4409
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HORATIO EVERHART,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton
Tilley, Jr., Senior District Judge. (1:08-cr-00186-NCT-2)
Submitted: March 5, 2010 Decided: March 26, 2010
Before SHEDD, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Terry Michael Meinecke,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Horatio Everhart pled guilty pursuant to a plea
agreement to conspiracy to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2006). Due to
the quantity of drugs involved, Everhart was subject to a
ten-year mandatory minimum sentence; however, because Everhart
qualified for the safety valve provision in 18 U.S.C.
§ 3553(f)(1)-(5) (2006), the district court sentenced Everhart
to 108 months’ imprisonment, which fell within Everhart’s
advisory guidelines range. Everhart timely noted his appeal,
and on appeal, he has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). ∗ Finding no error, we affirm.
In his Anders brief, Everhart suggests that his
sentence was substantively unreasonable. According to Everhart,
district courts, when sentencing crack cocaine offenders, should
calculate an alternative guidelines range that eliminates the
sentencing disparity between crack cocaine offenses and offenses
involving an equivalent amount of powder cocaine. District
courts, Everhart argues, could then enhance an individual
defendant’s sentence based on the factors in 18 U.S.C. § 3553(a)
∗
Although Everhart was informed of his right to file a pro
se supplemental brief, he has not done so.
2
(2006) and the particular circumstances surrounding the
defendant’s conduct.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008). In reviewing a sentence, the
appellate court must “first ensure that the district court
committed no significant procedural error,” such as improperly
calculating the guidelines range, failing to consider the §
3553(a) factors, or failing to adequately explain the chosen
sentence. Gall, 552 U.S. at 51. If there are no procedural
errors, the appellate court then considers the substantive
reasonableness of the sentence. Id.“When rendering a sentence, the district court must
make an individualized assessment based on the facts presented”
and “state in open court the particular reasons supporting its
chosen sentence.” United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (internal quotation marks and citations
omitted). This requires the district court to provide a
sufficient explanation of the sentence to satisfy this court
that the district court has a reasoned basis for its decision
and has considered the parties’ arguments. Id. When reviewing
a sentence on appeal, this court presumes a sentence within the
3
properly calculated guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In his brief, Everhart relies on Spears v. United
States, 129 S. Ct. 840 (2009). Spears, though, does not dictate
a particular ratio district courts must adopt in calculating a
defendant’s advisory guidelines range. Id. at 844. Rather,
Spears merely recognizes a district court’s authority to
substitute its own crack cocaine-to-powder cocaine ratio if it
determines that the disparity embodied in the Guidelines is
unwarranted. The district court here, in the exercise of its
discretion, explicitly rejected the argument that the disparity
was unwarranted. We find no abuse of discretion in the district
court’s determination of Everhart’s sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Everhart’s conviction and sentence. This
court requires that counsel inform Everhart, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Everhart 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 Everhart.
4
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
5