United States v. Conway

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4058
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DELARIA ANTWAN CONWAY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-00465-HFF-1)
Submitted: July 21, 2009 Decided: August 7, 2009
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William Walter Wilkins, III,
United States Attorney, Columbia, South Carolina, James D.
Galyean, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delaria Antwan Conway pled guilty to two counts of
possession with intent to distribute 5 or more grams of cocaine
base, in violation of 21 U.S.C. § 841(b)(1) (2006). The
district court sentenced Conway to 262 months’ imprisonment, at
the bottom end of Conway’s advisory guidelines range. Conway
timely noted his appeal. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he asserts that there are no meritorious issues for appeal but
questions the reasonableness of Conway’s sentence. Although
informed of his right to file a pro se supplemental brief,
Conway has not done so.
Counsel first suggests that the district court
committed plain error in sentencing Conway to 262 months’
imprisonment. Plain error requires Conway to establish that:
(1) there was error; (2) the error was “plain;” and (3) the
error affected his substantial rights. United States v. Olano,
507 U.S. 725, 732 (1993). Even if he makes this showing, “Rule
52(b) leaves the decision to correct the forfeited error within
the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quoting United States v. Young,
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470 U.S. 1, 15 (1985) (internal quotations omitted)). Conway
fails to establish reversible error by the district court.
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, 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). Further,
this court on appeal may presume a sentence within the
guidelines range to be reasonable. Id. Even if the reviewing
court would have reached a different result, this fact alone is
insufficient to justify reversal of the district court. Id. at
474.
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“When rendering a sentence, the district court must
make an individualized assessment based on the facts presented.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 128 S. Ct. at 597 (internal quotations omitted)
(emphasis in the original)). Accordingly, a sentencing court
must apply the relevant § 3553(a) factors to the particular
facts presented and must “state in open court” the particular
reasons that support its chosen sentence. Id. Stating in open
court the particular reasons for a chosen sentence requires the
district court to set forth enough to satisfy this court that
the district court had a reasoned basis for its decision and
fairly considered the parties’ arguments.
The record here establishes that the district court
did not commit procedural or substantive error in sentencing
Conway. The district court properly concluded Conway was a
career offender and correctly determined his advisory guidelines
range. After listening to defense counsel and Conway’s mother,
the district court imposed a sentence at the bottom of Conway’s
advisory guidelines range. We find nothing in this record to
rebut the presumption of reasonableness accorded to Conway’s
within-guidelines sentence. Accordingly, the district court did
not err in sentencing Conway to 262 months’ imprisonment.
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Conway also suggests that the district court committed
plain error in denying him an opportunity to allocute at his
sentencing hearing. United States v. Cole, 27 F.3d 996(4th Cir. 1994). Even if such error occurred, however, reversal
of Conway’s sentence is not appropriate. During a hearing held
by the district court to reconsider its sentencing order,
Conway, after answering questions asked of him by the district
court, declined a specific invitation by the district court to
speak further. In light of Conway’s refusal to say anything in
support of his motion for reconsideration of his sentence,
Conway cannot establish that any error by the district court
affected his substantial rights.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Conway’s conviction and sentence. This
court requires that counsel inform Conway, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Conway 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 Conway.
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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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