United States v. Dwight Carrington , 539 F. App'x 111 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5049
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DWIGHT ELLIS CARRINGTON,
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. (1:11-cr-00143-WO-1)
Submitted: August 29, 2013 Decided: September 3, 2013
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:
Dwight Ellis Carrington appeals his conviction and
sixty-month sentence imposed following his guilty plea to giving
false or fictitious statements to acquire a firearm, in
violation of 18 U.S.C. § 922(a)(6) (2006). On appeal,
Carrington’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
district court committed sentencing error. Carrington has filed
a pro se supplemental brief, raising additional sentencing
issues. The Government has declined to file a response brief.
Following a thorough review of the record, we affirm.
We review a sentence for reasonableness, applying a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 52 (2007). We first examine the
sentence for “significant procedural error,” including improper
calculation of the Guidelines range, insufficient consideration
of the 18 U.S.C. § 3553(a) (2006) factors, and inadequate
explanation of the sentence imposed. Gall, 552 U.S. at 51. In
announcing its sentence, the court must conduct an
“individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). It need not
provide a “comprehensive, detailed opinion,” so long as its
2
explanation is adequate “to satisfy the appellate court that
[it] has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.”
United States v. Engle, 592 F.3d 495, 500 (4th Cir. 2010)
(internal quotation marks and alteration omitted).
If we find a sentence is procedurally reasonable, we
also must consider the substantive reasonableness of the
sentence under the totality of the circumstances. Gall, 552
U.S. at 51. A sentence must be “sufficient, but not greater
than necessary” to satisfy the § 3553(a) factors. United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010)
(quoting Kimbrough v. United States, 552 U.S. 85, 111 (2007)).
A within-Guidelines sentence is presumed reasonable on appeal,
and the defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Counsel first questions whether the district court
procedurally erred in failing to adequately respond to his
arguments for a below-Guidelines sentence or consider the
§ 3553(a) factors. However, the court expressly rejected
Carrington’s arguments for a downward departure, recognizing
that prior lengthy sentences had not deterred him. In
3
announcing its sentence, the court specifically addressed the
nature of the offense and Carrington’s personal history and
characteristics as possible mitigating factors but ultimately
concluded that a sentence of sixty months was necessary to deter
future crimes, to promote respect for the law, and to protect
the public. We conclude that this individualized assessment
adequately addressed the § 3553(a) factors and counsel’s
arguments, and we discern no procedural error in the sentence.
Moreover, while counsel questions whether the sentence unduly
emphasized Carrington’s criminal history and was greater than
necessary to meet the § 3553(a) factors, we conclude that
Carrington fails to rebut the presumption of reasonableness
accorded his within-Guidelines sentence. See Montes-Pineda, 445
F.3d at 379.
We also have reviewed Carrington’s pro se supplemental
brief but conclude that his arguments lack merit. Carrington
asserts that the district court erred in basing Carrington’s
sentence on his need to participate in a specific substance
abuse treatment program that he has been prohibited from
attending. Carrington’s argument is belied by the record,
however. Although the court recommended Carrington for this
treatment program, the sentencing transcript clearly indicates
that the court did not base Carrington’s sentence on the need
for substance abuse treatment. Nor does the record support
4
Carrington’s assertion that his sentence was based on any
inaccurate information in the presentence report. While
Carrington argues that the court impermissibly considered his
alcohol use and related convictions in sentencing him, we
conclude the court appropriately considered these factors in
fashioning a sentence under 18 U.S.C. § 3553(a). Finally,
insofar as Carrington challenges the court’s refusal to depart
downward from the Guidelines range, we lack authority to review
this issue, as the record reveals that the court properly
understood its authority to depart. See United States v.
Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Carrington, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Carrington 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 Carrington.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before this court and argument would not aid the decisional
process.
AFFIRMED
6