United States v. Hulse-Ebanks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ALEJANDRO HULSE-EBANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cr-00140-RBS-FBS-1)
Submitted: September 24, 2009 Decided: October 26, 2009
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Randy Stoker, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Hulse-Ebanks pled guilty to unlawful reentry by
a previously deported felon, 8 U.S.C. § 1326(a), (b)(2) (2006),
and was sentenced to seventy-two months in prison. He now
appeals his sentence. We affirm.
I
Hulse-Ebanks first contends that he was denied his
right of allocution, Fed. R. Crim. P. 32(i)(4)(A)(ii), because
the district court pronounced sentence prior to affording him
the opportunity to address the court. We disagree.
At sentencing, the court first found that the advisory
Guidelines range had been correctly calculated. Next, the court
addressed in detail the 18 U.S.C. § 3553(a)(2006) sentencing
factors and their application to this case. Finally, the court
concluded that a sentence of seventy-two months was “sufficient
but not greater than necessary to comply with the purposes of”
§ 3553. The court then stated, “Before the court finalizes any
sentence that it imposes, the defendant . . . may . . . make any
statement to the court that he wishes to make.” Hulse-Ebanks
addressed the court. The court then sentenced him to seventy-
two months in prison. In pronouncing sentence, the court stated
that it had considered his statement.
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We conclude that Hulse-Ebanks was not denied his right
of allocution. Rather, while the district court announced a
tentative sentence, it did not impose that sentence until after
hearing Hulse-Ebanks’ allocution. There was no violation of
Rule 32(i)(4)(A)(ii). See United States v. Boose, 403 F.3d
1016, 1017 (8th Cir. 2005); United States v. Lopez-Lopez, 295
F.3d 165, 171 (1st Cir. 2002); United States v. Leasure, 122
F.3d 837, 840 (9th Cir. 1997).
II
Hulse-Ebanks contends that his sentence is
unreasonable because it is longer than necessary to achieve the
statutory goals of sentencing set forth in 18 U.S.C. § 3553(a).
We review a sentence for reasonableness, applying an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 128 S.
Ct. 586, 597 (2007). In conducting our review, we first examine
the sentence for “significant procedural error,” including
“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.” Id. The district court must provide an
“individualized assessment” based upon the specific facts before
it. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
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(emphasis omitted). We next “consider the substantive
reasonableness of the sentence imposed.” Id. At this stage, we
“take into account the totality of the circumstances.” Gall,
128 S. Ct. at 597.
Here, the district court followed the necessary
procedural steps in sentencing Hulse-Ebanks, correctly
calculating the advisory Guidelines range, performing an
individualized assessment of the § 3553(a) factors as they
applied to the facts of the case, and stating in open court the
reasons for the sentence. We may presume that the sentence,
which falls within the advisory Guidelines range, is reasonable.
See United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Hulse-Ebanks offers no persuasive argument to rebut this
presumption. We conclude that the sentence is procedurally and
substantively reasonable and that the district court did not
abuse its discretion in sentencing him to seventy-two months in
prison.
III
We accordingly affirm. 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
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