United States v. Lord ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5043
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER LYNN LORD,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00274-1)
Submitted: July 20, 2010 Decided: August 19, 2010
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP,
Greensboro, North Carolina, for Appellant. Michael A. DeFranco,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Lynn Lord pled guilty, pursuant to a
written plea agreement, to one count of using interstate
commerce to attempt to persuade, induce, entice, or coerce a
minor to engage in illegal sexual activity, * in violation of
18 U.S.C. § 2422(b) (2006). The district court calculated
Lord’s Guidelines range at 235 to 293 months’ imprisonment, see
U.S. Sentencing Guidelines Manual (2006), and sentenced Lord to
235 months’ imprisonment and twenty-five years’ supervised
release. Lord timely appealed. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he raises two sentencing issues. Lord has filed a pro se
supplemental brief raising several sentencing challenges and a
challenge to his conviction. We affirm.
Counsel questions whether the district court erred in
denying Lord’s request for a variant sentence below the
Guidelines range. However, a district court’s refusal to depart
from the applicable Guidelines range does not provide a basis
for appeal under 18 U.S.C. § 3742(a) (2006), “unless the court
failed to understand its authority to do so.” United States v.
Brewer, 520 F.3d 367, 371 (4th Cir. 2008). After review of the
*
Specifically, the indictment alleged that the sexual
activity would violate N.C. Gen. Stat. § 14-202.1 (2009), which
prohibits taking indecent liberties with a minor.
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record, we find no evidence that the district court failed to
understand its authority to impose a below-Guidelines sentence.
Accordingly, this claim is not cognizable on appeal.
Turning to the sentence imposed, we review it “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
“must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (internal quotation marks and emphasis omitted),
and must “adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of
fair sentencing,” Gall, 552 U.S. at 50. “When imposing a
sentence within the Guidelines, however, the [district court’s]
explanation need not be elaborate or lengthy because
[G]uidelines sentences themselves are in many ways tailored to
the individual and reflect approximately two decades of close
attention to federal sentencing policy.” United States v.
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Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation
marks omitted).
Once we have determined that the sentence is free of
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. If the
sentence is within the appropriate Guidelines range, we apply a
presumption on appeal that the sentence is reasonable. United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
Lord challenges the district court’s calculation of
the base offense level on the basis that the presentence report
(“PSR”), which the district court adopted, improperly found him
to be a repeat and dangerous sex offender against minors, see
USSG § 4B1.5. Lord, however, has not offered any evidence to
the contrary or specifically explained why the PSR is inaccurate
or unreliable. His mere disagreement with the PSR’s assessment
of his behavior, particularly on appeal for the first time, is,
without more, insufficient to put the PSR’s findings into
dispute. See United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990). Because Lord failed to make the required
affirmative showing that the PSR was inaccurate or unreliable,
the district court was “free to adopt [its]
findings . . . without more specific inquiry or explanation.”
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Id. (internal quotation marks omitted). We accordingly affirm
the district court’s calculation of Lord’s base offense level.
Additionally, we conclude that the district court did
not otherwise commit reversible procedural error in imposing
sentence. The court correctly calculated the advisory
Guidelines range and heard argument from counsel and allocution
from Lord. The court considered the § 3553(a) factors and
explained that the within-Guidelines sentence was warranted in
light of the nature and circumstances of the offense, Lord’s
history and characteristics, and the need to protect the public
from further crimes by Lord. Further, neither counsel nor Lord
offers any grounds to rebut the presumption on appeal that the
within-Guidelines sentence of 235 months’ imprisonment is
substantively reasonable.
Next, counsel questions whether the district court
erred in not ordering the 235-month imprisonment term to run
concurrently to the prison term Lord was then serving for a
violation of his state probation. However, as the prison term
Lord was serving at the time of sentencing for the subject
federal conviction pertained to an unrelated state conviction,
the district court was free to impose a concurrent, partially
concurrent, or consecutive sentence on Lord. See USSG
§ 5G1.3(c), p.s.
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In his pro se brief, Lord contends that the district
court erred by failing to consider USSG § 5G1.3(c), p.s., when
it ordered the 235-month prison term to run consecutive to,
rather than concurrent with, his undischarged state prison term.
Although we ordinarily review legal questions concerning the
application of the Sentencing Guidelines de novo, see United
States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010), where a
defendant argues on appeal that the district court erred in its
consideration of USSG § 5G1.3 p.s., but did not invoke the
Guideline or argue that he was entitled to a concurrent sentence
in the district court, we review only for plain error, United
States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004). Lord has
not demonstrated error under either standard of review.
Although the district court did not specifically mention USSG
§ 5G1.3(c), p.s., at the sentencing hearing, the provision was
cited in the PSR, and it is clear from the record that the
district court considered the PSR as well as the arguments by
counsel for and against a concurrent sentence. Accordingly, we
can fairly infer that the district court considered USSG
§ 5G1.3(c), p.s., and Lord has not shown any error. See United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (“A [district]
court need not engage in ritualistic incantation in order to
establish its consideration of a legal issue. It is sufficient
if . . . the district court rules on issues that have been fully
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presented for determination. Consideration is implicit in the
court's ultimate ruling.”).
Lord also raises a pro se challenge to the court’s
imposition of a special condition of his term of supervised
release providing that he not “view, purchase, possess, or
control any sexually explicit materials including, but not
limited to[,] pictures, magazines, video tapes, movies, or any
material obtained through access to any computer or any material
linked to computer access or use.” Because Lord did not object
to the special condition at the time of sentencing, we review
only for plain error. See United States v. Rodriguez-Rodriguez,
441 F.3d 767, 772 (9th Cir. 2006). After review of the record,
we conclude that the condition is reasonable, given Lord’s
background and the need for the district court to protect the
public. Lord thus fails to show plain error.
Turning to Lord’s conviction, because he did not move
in the district court to withdraw his guilty plea, the Fed. R.
Crim. P. 11 hearing is reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our
review of the transcript of the plea hearing leads us to
conclude that the district court substantially complied with the
mandates of Rule 11 in accepting Lord’s guilty plea.
Critically, the transcript reveals that the district court
ensured the plea was supported by an independent factual basis
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and that Lord entered the plea knowingly and voluntarily with an
understanding of the consequences. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Accordingly, no plain error occurred in the conduct of the plea
proceeding. Finally, we reject as unsupported by the record
Lord’s claim that he is actually innocent of the offense to
which he pled guilty because the Government failed to show that
the activity he attempted to induce was sexual activity.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. We therefore affirm the district court’s judgment.
This court requires that counsel inform Lord, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Lord 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 Lord. 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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