United States v. Hopper

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4685
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTINEOUS LEON HOPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00031-LHT-2)
Submitted: February 7, 2011 Decided: March 1, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Fredilyn
Sison, Assistant Federal Defenders, Charlotte, North Carolina,
for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martineous Leon Hopper pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. § 846 (2006).
The district court sentenced Hopper as a career offender to 188
months’ imprisonment, the bottom of the Guidelines range.
Appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which she asserts there are
no meritorious issues for appeal but questions whether the
district court erred in counting Hopper’s prior felony
convictions for assault with a deadly weapon as separate
offenses under U.S. Sentencing Guidelines Manual (USSG) § 4B1.1
(2008). Hopper filed a pro se supplemental brief. ∗ Finding no
error, we affirm.
Appellate review of a sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” is for
abuse of discretion. Gall v. United States, 552 U.S. 38, 41
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. “Procedural reasonableness evaluates the method used to
∗
In addition to counsel’s argument, Hopper contends that
the district court erred in failing to state specifically on the
record that it had considered the crack/powder disparity. We
have carefully reviewed the record and conclude that Hopper’s
claim is without merit.
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determine a defendant’s sentence.” United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). In contrast,
“[s]ubstantive reasonableness examines the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
the standards set forth in [18 U.S.C.] § 3553(a) [(2006)].” Id.
This court must assess whether the district court
properly calculated the advisory Guidelines range, considered
the § 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 49-50; see also United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009). A sentence imposed within the
properly calculated Guidelines range is presumed reasonable by
this court. Mendoza-Mendoza, 597 F.3d at 217.
Counsel asserts that Hopper’s prior assault
convictions should not be counted as separate offenses for
career offender purposes because they were consolidated for
sentencing. However, our review of the record reveals that the
charges were separated by an intervening arrest, see USSG
§ 4A1.2(a)(2): Hopper was arrested on June 4, 1996, for felony
assault with a deadly weapon with intent to inflict serious
injury, and he was arrested on December 9, 1996, for felony
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assault with a deadly weapon with intent to inflict serious
injury on a different victim. Accordingly, the district court
correctly found that Hopper’s prior convictions counted as
separate convictions for the purpose of calculating his sentence
under the career offender guideline. See USSG §§ 4B1.1(a),
4B1.2(c). Therefore, we conclude that the district court did
not commit procedural or substantive error, or otherwise abuse
its discretion, in imposing a 188-month within-Guidelines
sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the judgment of the district court. This
court requires that counsel inform Hopper, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Hopper 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 Hopper. 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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