United States v. Warren

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4852
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TROY WARREN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00450-FDW-1)
Submitted: July 28, 2009 Decided: August 10, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Elizabeth Blackwood, FEDERAL DEFENDERS OF WESTERN NORTHERN
CAROLINA, INC., 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Unpublished opinions are not binding precedent in this circuit.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:
Troy Warren pled guilty to three counts of bank
robbery, in violation of 18 U.S.C. § 2113(a) (2006). The
probation office prepared a presentence investigation report in
which Warren was determined to be a career offender with an
advisory guidelines range of 151 to 188 months’ imprisonment.
At the conclusion of Warren’s sentencing hearing, the district
court sentenced Warren to 180 months’ imprisonment each count,
to be served concurrently. Warren timely noted his appeal.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Warren has also filed two pro se supplemental
briefs.
In his counseled Anders brief, Warren suggests that
his sentence is procedurally and substantively unreasonable.
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
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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). Further, this court 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.
“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)). 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 has a
reasoned basis for its decision and has considered the parties’
arguments. Id. Carter, though, does not require a sentencing
court to “robotically tick through” otherwise irrelevant
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subsections of § 3553(a). See United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006).
According to Warren, the district court, in imposing
his sentence, failed to properly consider the first 18 U.S.C.
§ 3553(a) (2006) factor by failing to consider that he, in
effect, turned himself in to authorities and by failing to
consider that he confessed to two additional robberies for which
he was not yet a suspect. We have reviewed the record and
conclude that Warren’s argument is wholly without merit. The
district court provided a thorough, detailed explanation for
Warren’s sentence that specifically addressed Warren’s principal
sentencing argument regarding his addiction to crack cocaine.
The district court also properly calculated Warren’s advisory
guidelines range, heard the arguments of counsel, and listened
to Warren’s allocution prior to imposing sentence. Accordingly,
the district court did not commit procedural error in sentencing
Warren. Also, the record fails to rebut the presumption of
reasonableness we apply on appeal to Warren’s within-guidelines
sentence. See Rita v. United States, 551 U.S. 338, ___, 127 S.
Ct. 2456, 2459 (2007); Pauley, 511 F.3d at 473.
Warren has also filed two pro se supplemental briefs
in which he raises three arguments. First, Warren argues that
he was improperly classified as a career offender because
attempted armed robbery under New York law encompasses both
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violent and non-violent conduct. Warren’s claim is without
merit. See N.Y. Penal Law §§ 110.00 & 160.15. Warren also
claims that, because he was convicted of attempted armed robbery
- as opposed to armed robbery - his offense was improperly used
to apply the career offender enhancement. This argument,
however, ignores that a “crime of violence” within the meaning
of U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a)
includes an attempt to commit a crime of violence. USSG § 4B1.2
comment n.1. Finally, Warren argues that his trial counsel was
ineffective. Claims of ineffective assistance of counsel are
not cognizable on direct appeal unless the record conclusively
establishes trial counsel’s ineffective assistance. United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). The
record here does not conclusively establish that trial counsel
provided ineffective assistance.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Warren’s conviction and sentence. This
court requires that counsel inform Warren, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Warren 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
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representation. Counsel’s motion must state that a copy thereof
was served on Warren.
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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