United States v. Hollingsworth ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4739
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAYWOOD JEROME HOLLINGSWORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:99-cr-00058-BO-2)
Submitted: June 22, 2010 Decided: July 6, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Haywood Jerome Hollingsworth appeals the forty-six
month sentence imposed by the district court after its finding
that Hollingsworth violated the terms of his supervised release.
Hollingsworth’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the
district court individually assessed the statutory sentencing
factors, but concluding that because Hollingsworth received the
within-Guideline range sentence that he requested, the appeal
presents no meritorious issues. Hollingsworth was informed of
his right to file a pro se supplemental brief but has not done
so. We affirm.
We review a sentence imposed upon revocation of
supervised release to ensure that it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step in this review requires us to
determine whether the sentence is unreasonable. United States
v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In assessing
reasonableness, we generally follow the procedural and
substantive components employed in reviewing original sentences.
Id. Only if the sentence is unreasonable do we proceed to the
second step of the analysis – whether the sentence is plainly
unreasonable. Id. at 438-39.
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A sentence is procedurally unreasonable if the
district court “‘fails to adequately explain the chosen
sentence.’” Thompson, 595 F.3d at 547 (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)) (alteration omitted). The
district court “may not presume that the Guidelines range is
reasonable,” but “must make an individualized assessment based
on the facts presented” by applying the relevant § 3553(a)
factors to the circumstances of the case. Gall, 552 U.S. 38, 50
(2007). “A court need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a
post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.” Thompson, 595 F.3d at 547(internal quotation marks omitted).
We recently addressed in Thompson the appropriate
standards of appellate review for the sort of procedural error
Hollingsworth alleges here. “[A] defendant need only ask for a
sentence outside the range calculated by the court prior to
sentencing in order to preserve his claim for appellate review.”
Id. at 546. Where, as here, the party fails to preserve his
claim, we review the claim for plain error. See id. at 546.
Because Hollingsworth argued for, and received, a sentence
within the Guideline range, he has failed to preserve his claim
of procedural unreasonableness, and our review is for plain
error.
3
To establish plain error, Hollingsworth “must show
that an error (1) was made (2) is plain (i.e., clear or
obvious), and (3) affects substantial rights.” United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Our review of the
record leads us to conclude that Hollingsworth cannot show that
his substantial rights were affected by the claimed error. See
id. at 580 (holding that, where counsel “urged [the district]
court only to impose a sentence within the Guideline range,
which it did,” appellant could not show that error affected his
substantial rights).
Nor was the sentence imposed substantively
unreasonable. We deem a sentence within the properly calculated
Guideline range to be presumptively reasonable. United States
v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Here, the district
court sentenced Hollingsworth within the properly-calculated
Guidelines range, and Hollingsworth advances no persuasive
reason to rebut the presumption of reasonableness that there be
attached. Accordingly, because Hollingsworth’s sentence was not
unreasonable, we affirm the district court’s judgment.
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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