United States v. Napoleon Ellerbe ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAPOLEON LATAWN ELLERBE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00113-WO-1)
Submitted: August 28, 2014 Decided: September 2, 2014
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston, Salem, North Carolina, for Appellant. Clifton Thomas
Barrett, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Napoleon Latawn Ellerbe pled guilty to interference
with commerce by robbery (Count One), in violation of 18 U.S.C.
§§ 2, 1951(a) (2012), and carrying and using firearms, by
brandishing, during and in relation to a crime of violence
(Count Two), 18 U.S.C. §§ 2, 924(c)(1)(A)(ii) (2012). The
district court sentenced Ellerbe at the low end of the
Guidelines range to 132 months’ imprisonment. * On appeal,
Ellerbe’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal but questioning the substantive
reasonableness of Ellerbe’s sentence. Ellerbe has not filed a
pro se supplemental brief, despite notice of his right to do so.
We affirm.
We review Ellerbe’s sentence for reasonableness,
applying a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 51 (2007). When reviewing a
sentence for substantive reasonableness, we examine the totality
of the circumstances and, if the sentence is within the
properly-calculated Guidelines range, apply a presumption on
appeal that the sentence is substantively reasonable. United
*
Ellerbe’s Guidelines range on Count One was forty-six to
fifty-seven months in prison. Count Two carried a statutory
mandatory minimum of seven years in prison.
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States v. Mendoza–Mendoza, 597 F.3d 212, 216–17 (4th Cir. 2010).
Such a presumption is rebutted only if the defendant shows “that
the sentence is unreasonable when measured against the [18
U.S.C.] § 3553(a) [(2012)] factors.” United States v. Montes–
Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation
marks omitted).
On appeal, Ellerbe’s counsel argues that the district
court failed to consider nonfrivolous mitigating circumstances
and, as a result, Ellerbe’s sentence is greater than necessary
to accomplish the goals of § 3553(a). We conclude that Ellerbe
has failed to overcome the appellate presumption of
reasonableness afforded his sentence. In arguing for a downward
variance at sentencing, defense counsel pointed to Ellerbe’s
personal mitigating circumstances and noted that an allegedly
similarly situated co-defendant, Gerald Tyler, received a
sentence of 113 months in prison. The district court
acknowledged Ellerbe’s “difficult personal circumstances,” but
concluded that because it was “a very serious robbery,” Ellerbe
was “the principal actor in terms of carrying and brandishing a
firearm,” and Ellerbe committed the instant offense just four
months after release from imprisonment, a sentence at the low
end of the Guidelines range was appropriate to deter Ellerbe and
others similarly situated and to protect the public from further
crimes by Ellerbe. With respect to the sentence received by
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Tyler, the district court did not find the comparison helpful in
light of their respective roles, criminal histories, and Tyler’s
early admission of wrongful conduct. Given the presumption of
reasonableness that attaches to a within-Guidelines sentence, we
find no abuse of discretion in the district court’s decisions
not to vary downward and to impose a sentence within the
Guidelines range.
In accordance with Anders, we have reviewed the entire
record and find no other meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires counsel to inform Ellerbe, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Ellerbe requests that a petition be filed
but counsel believes such a petition would be frivolous, counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Ellerbe. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid in the
decisional process.
AFFIRMED
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