United States v. Norman , 398 F. App'x 934 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4855
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS EDWARD NORMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-01467-HFF-36)
Submitted: September 30, 2010 Decided: October 21, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rodney W. Richey, RICHEY AND RICHEY, Greenville, South Carolina,
for Appellant. William N. Nettles, United States Attorney,
William J. Watkins, Jr., Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Thomas Edward
Norman pled guilty to conspiracy to possess with intent to
distribute five kilograms or more of cocaine and fifty grams or
more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2006). He received a within-Guidelines sentence
of 84 months’ imprisonment. On appeal, his attorney filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether Norman’s sentence is reasonable. Norman
filed a pro se supplemental brief. Pursuant to our review of
the case under Anders, we directed counsel for Norman to file a
merits brief, advising counsel that specific attention should be
paid to the issue of whether the district court’s brief
reasoning for choosing the imposed sentence rendered Norman’s
sentence procedurally unreasonable. Norman’s attorney
subsequently filed a merits brief arguing that the sentencing
court failed to make an individualized assessment and to
sufficiently explain its reasoning for the chosen sentence in
light of the 18 U.S.C. § 3553(a) (2006) factors. The Government
filed a response, arguing that the error, if any, was harmless.
We affirm.
We review a sentence imposed by the district court for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
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review requires the court to 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. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). We then consider the substantive reasonableness of the
sentence imposed, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51. On appeal, we presume
that a sentence within a properly calculated guideline range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
Norman argues that his sentence is procedurally
unreasonable because the district court did not mention any of
the § 3553(a) factors or explain the sentence it imposed with an
individualized assessment of how the factors applied in his
case. Norman preserved the issue by arguing in the district
court for a sentence below the advisory Guidelines range. See
United States v. Lynn, 592 F.3d 572, 577-78 (4th Cir. 2010).
“[I]f a party repeats on appeal a claim of procedural sentencing
error . . . which it has made before the district court, we
review for abuse of discretion” and will reverse unless we can
conclude “that the error was harmless.” Id. at 576.
The district court is not required to “robotically
tick through § 3553(a)’s every subsection.” United States v.
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Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the
district court must “place on the record an individualized
assessment based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.”
Carter, 564 F.3d at 330 (internal quotation marks, footnote, and
citation omitted). This is true even when the district court
sentences a defendant within the applicable Guidelines range.
Id. An extensive explanation is not required as long as the
appellate court is satisfied “‘that [the district court] has
considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.’” United
States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010) (quoting
Rita v. United States, 551 U.S. 338, 356 (2007)), petition for
cert. filed, 78 U.S.L.W. 3764 (U.S. 2010) (No. 09-1512).
The Government contends that, even if the district
court failed to adequately explain the sentence it imposed in
light of the § 3553(a) factors, any error was harmless because
the record establishes that the district court considered
Norman’s request for a lenient sentence based on his allegedly
minor role in the offense. The Government further argues it is
unrealistic to conclude that any further explicit analysis by
the district court would have resulted in a shorter sentence.
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Norman asked for a below-Guidelines sentence based on
his claim he was a minor participant. The Government responded;
the court invited the probation officer’s input; and the court
participated in the exchange and debate. The court then
explicitly stated that it rejected Norman’s minor player
argument, thereby not warranting a below-Guidelines sentence.
Our review of the record convinces us the Government
is correct, and that any error in this case was harmless. See
Lynn, 592 F.3d at 582; see also Rita, 551 U.S. at 359(“Where . . . the record makes clear that the sentencing judge
considered the evidence and arguments, we do not believe the law
requires the judge to write more extensively.”); United States
v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010) (procedural error
is harmless if it did not have a substantial and injurious
effect or influence on the result and this court can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed). Furthermore, Norman’s within-Guidelines
sentence is presumptively reasonable on appeal, and Norman has
not rebutted that presumption. See United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (stating presumption
may be rebutted by showing sentence is unreasonable when
measured against the § 3553(a) factors).
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In accordance with Anders, we have thoroughly reviewed
the record for any other meritorious issues and have found none.
We reject Norman’s claims in his pro se supplemental briefs as
non-meritorious. We accordingly affirm Norman’s conviction and
sentence. This court requires that counsel inform Norman, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Norman requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy of the motion was served on Norman. 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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