United States v. Robert Ross

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EARL ROSS, a/k/a Slim, a/k/a Bandana,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:12-cr-00401-BR-1)
Submitted: July 29, 2014 Decided: July 31, 2014
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Earl Ross pled guilty without a plea agreement
to conspiracy to distribute and possess with intent to
distribute heroin, 21 U.S.C. § 846 (2012), and three counts of
distribution of heroin, 21 U.S.C. § 841 (2012). Ross was
designated a career offender and, at sentencing, the district
court rejected Ross’ request for a seven-month downward
variance. Ross was sentenced at the low end of his advisory
Guidelines range to 151 months’ imprisonment. On appeal, Ross
challenges the substantive reasonableness of his sentence,
contending that it is greater than necessary to accomplish the
goals of 18 U.S.C. § 3553(a) (2012) and that the district court
erred in denying his request for a downward variance. Finding
no reversible error, we affirm.
We review Ross’ 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 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 § 3553(a)
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factors.” United States v. Montes–Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
We conclude that Ross has failed to overcome the
appellate presumption of reasonableness afforded his sentence.
In arguing for a downward variance, defense counsel identified
several mitigating factors that he contended justified a reduced
sentence, including Ross’ disadvantaged childhood, young age,
and long standing drug addiction. The district court
acknowledged these considerations as well as the fact that Ross’
family home had been destroyed twice by fire and that a family
member had influenced Ross to take part in a criminal lifestyle.
The district court, however, reasonably concluded, in light of
Ross’ gang activity and violent crimes, that a sentence at the
bottom of the Guidelines range satisfied the need for
deterrence, just punishment, and rehabilitation. See United
States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011)
(“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”).
Given the presumption of reasonableness that attaches
to a within-Guidelines sentence, we find no abuse of discretion
in the district court’s decision not to vary downward and to
impose a sentence at the low end of the Guidelines range.
Accordingly, we affirm the district court’s judgment. We
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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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