United States v. Robert Fleek, Jr. ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4704
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT J. FLEEK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:12-cr-00122-1)
Submitted: May 9, 2014 Decided: May 16, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Acting Federal Public Defender, Jonathan D.
Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, John L. File,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Fleek appeals the thirty-month sentence of
imprisonment imposed by the district court after he pled guilty
to knowingly and intentionally distributing forty-eight
hydromorphone pills, in violation of 21 U.S.C. § 841(a)(1)
(2012). On appeal, Fleek argues that his sentence is
substantively unreasonable because the drug quantity table at
U.S. Sentencing Guidelines Manual § 2D1.1(c) (2012), and the
method of calculating the drug weight for hydromorphone by the
weight of the whole pill and not the active ingredient are
arbitrary. ∗ We affirm.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. Where, as here,
there is no allegation of significant procedural error, we
proceed to review the sentence for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
∗
We do not address Fleek’s argument, raised for the first
time in his reply brief, that recently proposed Guidelines
amendments entitle him to a reduction in his base offense level.
See United States v. Brooks, 524 F.3d 549, 556 & n.11 (4th Cir.
2008) (deeming claim raised for first time in reply brief
abandoned).
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If the sentence is within or below the properly calculated
Guidelines range, we apply a presumption on appeal that the
sentence is substantively reasonable. United States v. Yooho
Weon, 722 F.3d 583, 590 (4th Cir. 2013). 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).
Fleek argues that the Guidelines themselves are flawed
with respect to opioids such as hydromorphone because they treat
pharmacologically indistinct substances differently when
translating drug weight and equivalency into a base offense
level. In short, Fleek contends that the district court erred
by relying on irrational, non-empirically based Guidelines.
Fleek invokes the Supreme Court’s decision in Kimbrough v.
United States, 552 U.S. 85 (2007), to urge that the district
court was required to vary below the Guidelines range in order
to reflect the § 3553(a) sentencing factors. However, Kimbrough
did not require district courts to consider “the presence or
absence of empirical data” underlying the Guidelines, United
States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012),
nor did it permit appellate courts to discard the presumption of
reasonableness for sentences “based on non-empirically grounded
Guidelines.” United States v. Mondragon-Santiago, 564 F.3d 357,
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366 (5th Cir. 2009). Moreover, we have rejected Fleek’s
particular arguments. See United States v. Meitinger, 901 F.2d
27, 29 (4th Cir. 1990) (approving use of entire drug weight);
United States v. Bayerle, 898 F.2d 28, 31-32 (4th Cir. 1990)
(upholding drug equivalency tables against irrationality
challenge).
In this case, the district court understood that it
had the power to vary from the Guidelines range and declined to
exercise that power after considering the medical evidence Fleek
presented to demonstrate the arbitrariness of the Guidelines.
Therefore, the district court’s sentence is entitled to the
presumption of reasonableness that attaches to a within-
Guidelines sentence. The district court stated that it applied
the § 3553(a) factors and found that a sentence at the low end
of the advisory Guidelines range was appropriate. Because Fleek
challenges only the district court’s decision to apply the
Guidelines, and does not argue any other basis to support the
requested variance, we conclude that Fleek’s sentence is
substantively reasonable.
Accordingly, 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
this court and argument would not aid the decisional process.
AFFIRMED
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