United States v. Bostic ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4251
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AMHAL RASHAD BOSTIC,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00182-JAB-1)
Submitted: April 15, 2010 Decided: April 29, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher A. Beechler, Winston-Salem, North Carolina, for
Appellant. Angela Hewlett Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Amhal Rashad Bostic pled guilty pursuant to a plea
agreement to bank robbery with a dangerous weapon, in violation
of 18 U.S.C. § 2113(d) (2006), and carrying and using, by
brandishing, a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (2006). The district court
sentenced Bostic to thirty-three months on the robbery
conviction and a mandatory seven-year term of imprisonment on
the § 924(c) count. On appeal, Bostic’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal. The Government declined to file a responsive brief.
Bostic was informed of his right to file a pro se supplemental
brief but has not done so.
Our careful review of the record convinces us that the
district court fully complied with the mandates of Fed. R. Crim.
P. 11 in accepting Bostic’s guilty plea and ensured that Bostic
entered his plea knowingly and voluntarily and that the plea was
supported by an independent factual basis. See United States v.
DeFusco, 949 F.2d 114, 116-17, 119-20 (4th Cir. 1991).
Accordingly, we affirm Bostic’s convictions.
We review Bostic’s sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
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consideration of both the procedural and substantive
reasonableness of a sentence. Id. In determining whether a
sentence is procedurally reasonable, this court must first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Id. at 49-50. This
court then must consider whether the district court considered
the factors in 18 U.S.C. § 3553(a) (2006), analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. “Regardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
must place on the record an ‘individualized assessment’ based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Although the district court procedurally erred when it
imposed Bostic’s sentence without explicitly making an
individualized assessment based on the particular facts of
Bostic’s case, because Bostic did not argue for a sentence
outside of his guidelines range, Bostic did not adequately
preserve an objection to the district court’s error. United
States v. Lynn, 592 F.3d 572, 579-80 (4th Cir. 2010).
Accordingly, we need only review the sentencing error for plain
error. See id. at 580.
To establish plain error, Bostic has to show that an
error: (i) was made; (ii) is plain (i.e., clear or obvious); and
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(iii) affects his substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if we
assumed that the district court’s brief explanation of Bostic’s
sentence constituted an obvious error in violation of Carter,
Fed. R. Crim. P. 52(b) requires Bostic to also show that the
district court’s lack of explanation had a prejudicial effect on
the sentence imposed. See Puckett v. United States, 129 S. Ct.
1423, 1433, n.4 (2009). We find Bostic has failed to make such
a showing.
Finally, we review the substantive reasonableness of
the sentence. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). We presume that a sentence imposed within the
properly calculated guidelines range is reasonable. Rita v.
United States, 551 U.S. 338, 346-56 (2007); United States v.
Smith, 566 F.3d 410, 414 (4th Cir. 2009). Applying the
presumption of reasonableness to Bostic’s within-guidelines
sentence, which Bostic fails to rebut on appeal, we find that
the district court did not abuse its discretion in imposing the
chosen sentence.
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 Bostic, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Bostic 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 Bostic. 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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