United States v. Hicks , 407 F. App'x 714 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4852
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LATRONE ANTONIO HICKS, a/k/a Tee, a/k/a FNU LNU,
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-42)
Submitted: November 30, 2010 Decided: January 6, 2011
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy Ward Murphy, KOLB & MURPHY, LLC, Sumter, South Carolina,
for Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Latrone Antonio Hicks of conspiracy
to possess with intent to distribute and to distribute cocaine
and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2006). He was sentenced to 360 months’
imprisonment. Hicks’ appellate counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
in his opinion there are no meritorious issues for appeal but
raising the issues of whether sufficient evidence supports the
jury’s verdict and whether Hicks’ sentence is reasonable. The
Government has declined to file a responsive brief. Hicks has
filed a pro se supplemental brief. We affirm.
“A defendant challenging the sufficiency of the
evidence to support his conviction bears a heavy burden.”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(internal quotation marks omitted). A jury’s verdict “must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); see United States v. Perkins,
470 F.3d 150, 160 (4th Cir. 2006). Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
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omitted). We consider both circumstantial and direct evidence,
drawing all reasonable inferences from such evidence in the
Government’s favor. United States v. Harvey, 532 F.3d 326, 333
(4th Cir. 2008). In resolving issues of substantial evidence,
we do not reassess the factfinder’s determination of witness
credibility, see United States v. Brooks, 524 F.3d 549, 563 (4th
Cir. 2008), and “can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)
(internal quotation marks omitted). We have reviewed the
evidence introduced at trial and conclude that there is
sufficient evidence to support the jury’s verdict. Accordingly,
we affirm Hicks’ conviction.
With respect to Hicks’ sentence, we review a sentence
for reasonableness under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). This review
requires consideration of both the procedural and substantive
reasonableness of a sentence. Id. This court must assess
whether the district court properly calculated the advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010);
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If
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there is no procedural error, we review the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the
sentence is within the Guidelines range, we apply a presumption
of reasonableness. Rita v. United States, 551 U.S. 338, 346-56
(2007) (upholding presumption of reasonableness for within-
Guidelines sentence).
We have thoroughly reviewed the sentencing transcript
and the presentence report in this case, and conclude the
district court properly calculated the Guidelines range,
considered the relevant § 3553(a) factors, made an
individualized assessment based on the facts presented, and
adequately explained the reasons for the chosen sentence in open
court, demonstrating that it had a reasoned basis for its
decision. In imposing a 360-month sentence, the district court
specifically considered Hicks was involved in a very large
conspiracy and a very serious offense. The court noted a need
to provide adequate deterrence and also to protect the public
from crimes of the defendant. See Rita, 551 U.S. at 357(“[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy
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explanation.”). We conclude the sentence was not procedurally
unreasonable. Additionally, we conclude Hicks’ within-
Guidelines sentence is presumptively reasonable on appeal, see
Rita, 551 U.S. at 346-56; United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008), and he has failed to rebut 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).
Therefore, the sentence is substantively reasonable. See Go,
517 F.3d at 220.
In accordance with Anders, we have reviewed the entire
record and Hicks’ pro se supplemental brief, and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform
Hicks, in writing, of his right to petition the Supreme Court of
the United States for further review. If Hicks 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 Hicks. 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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