United States v. Mathis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VERNARD JEROME MATHIS, a/k/a Cuz,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., Chief
District Judge. (0:02-cr-01173-JFA-1)
Submitted: July 29, 2009 Decided: August 12, 2009
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Elliot, Columbia, South Carolina, for Appellant. Robert
Frank Daley, Jr., Marshall Prince, II, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vernard Jerome Mathis appeals his sentence imposed
after a remand. At trial, the jury was not instructed to make
an individualized determination regarding drug quantity with
respect to Mathis and his role in the drug conspiracy for which
he was convicted. On appeal, his sentence was vacated and
remanded to the district court for resentencing because the jury
did not make any determination regarding drug quantity with
respect to Mathis, nor did Mathis admit to being responsible for
a particular drug quantity. The court ruled Mathis faced a
twenty-year maximum sentence under 21 U.S.C. § 841(b)(1)(C)
(2006). While the court found no error with Mathis’ conviction,
the court declined to rule on Mathis’ claim that the district
court abused its discretion ordering the sentence run
consecutive to the five life sentences Mathis was serving in
state custody. See United States v. Brooks, 524 F.3d 549, 555
n.10, 560-61 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008).
At resentencing, the district court found that because
of the maximum statutory sentence, Mathis’ Sentencing Guidelines
sentence was twenty-years’ imprisonment. After some discussion
about whether the sentence should run concurrently, partially
concurrent or consecutively to Mathis’ state-imposed life
sentences, the court ordered Mathis to serve a twenty-year
sentence to run consecutively to the state sentences.
2
Mathis’ counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious arguments for appeal, but raises for the court’s
consideration, whether the district court erred imposing a
consecutive sentence. Mathis was notified of the opportunity to
file a pro se supplemental brief, but did not do so. The
Government chose not to file a brief.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007);
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). In
reviewing a sentence, the appellate court must first ensure that
the district court committed no procedural error, such as
failing to calculate or improperly calculating the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines range. Gall, 552 U.S. at __, 128 S. Ct. at 597. If
there are no procedural errors, the appellate court then
considers the substantive reasonableness of the sentence. Id.A substantive reasonableness review entails taking into account
the totality of the circumstances. United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007) (quotations and citation omitted).
3
Further, this court may presume a sentence within the guidelines
range to be reasonable. Id.Under U.S. Sentencing Guidelines Manual § 5G1.3(c), in
any case involving an undischarged term of imprisonment, “the
sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve a reasonable
punishment for the instant offense.” In reaching its decision,
the court should consider the § 3553(a) sentencing factors, the
type and length of the undischarged sentences, the time served
and the time likely to be served on the undischarged sentences,
whether the undischarged sentence was imposed in state court or
federal court and any other circumstances relevant to the
determination. See USSG § 5C1.3 (cmt. n.3(A)). In addition,
subsection (c) does not authorize a downward departure for the
instant offense for a period of imprisonment already served on
the undischarged term of imprisonment. See USSG § 5C1.3 (cmt.
n.3(E)).
We find there was no abuse of discretion with respect
to either the length of the sentence or that it will run
consecutively to the state sentences. There was no error with
the Guidelines calculations or the twenty-year statutory maximum
sentence. The district court understood the Guidelines were
advisory and that it was to consider the § 3553(a) sentencing
4
factors. The court imposed a consecutive sentence because
Mathis’ state convictions were unrelated to the drug conspiracy
and were not used as relevant conduct within the Guidelines’
calculations. The court also noted that it agreed with all the
Government’s arguments in favor of a consecutive sentence,
including the claim that if the sentence was to run concurrent,
he would have in essence received no prison time for the drug
conviction.
Because we find no abuse of discretion in the twenty-
year sentence, we affirm the district court’s amended judgment.
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
5