United States v. Rogers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SIMERNON ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00013-1)
Submitted: January 30, 2009 Decided: March 5, 2009
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Miller A.
Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley,
West Virginia; Elizabeth Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Simernon Rogers appeals from the sentence imposed
after he pleaded guilty to distribution of more than fifty grams
of cocaine base in violation of 21 U.S.C. § 841(a) (2006).
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that after a review of
the record, there are no meritorious issues for appeal. Rogers
has not filed an informal supplemental brief, and the Government
has declined to file a brief. Rogers’ Anders brief argues that
the amended crack to powder cocaine ratio still affects his
sentence and the district court should have considered the
continuing disparity and imposed a lower sentence. He also
argues that the sentence is greater than necessary to comply
with the purposes of 18 U.S.C. § 3553(a) (2006) because Rogers
does not have a history of criminal violence. Finding no error,
we affirm.
We review Rogers’ sentence under a deferential abuse
of discretion standard. See Gall v. United States, 128 S. Ct.
586, 590 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error, such as improperly calculating the Guidelines
range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),
cert. denied, 128 S. Ct. 2525 (2008). Other significant
procedural errors include “treating the Guidelines as mandatory,
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failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall, 128 S. Ct. at 597. The
court then considers the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
Id. This court presumes that a sentence within a properly
calculated Guidelines range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In sentencing, the district court should first
calculate the Guidelines range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The court should then consider the § 3553(a)
factors to determine whether they support the sentence requested
by either party. Id. While a district court must consider the
statutory factors and explain its sentence, it need not
explicitly reference § 3553(a) or discuss every factor on the
record, particularly when the court imposes a sentence within a
properly calculated Guidelines range. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006).
In Kimbrough v. United States, 128 S. Ct. 558 (2007),
the Supreme Court held that “it would not be an abuse of
discretion for a district court to conclude when sentencing a
particular defendant that the crack/powder disparity yields a
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sentence ‘greater than necessary’ to achieve § 3553(a)’s
purposes, even in a mine-run case.” Id. at 575. While the
district court did not specifically address the crack sentencing
ratio, it did not indicate that it was constrained from doing
so. Further, the court articulated its main concerns in
fashioning the sentence. The court correctly calculated the
Guidelines range and then gave both parties the opportunity to
argue for whatever sentence they deemed appropriate. Thus, the
district court committed no procedural or substantive error, and
Rogers’ sentence, which was within the calculated Guidelines
range, is presumptively reasonable. Therefore, we conclude that
there was no abuse of discretion by the district court.
In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
appeal. We therefore affirm Rogers’ conviction and sentence.
This court requires that counsel inform Rogers, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Rogers 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 Rogers. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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