United States v. Washington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4095
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY EARL WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00416-PMD-1)
Submitted: February 18, 2010 Decided: February 23, 2010
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Sean Kittrell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Earl Washington appeals his conviction and
resulting 180-month sentence after pleading guilty to being a
felon in possession of a firearm and ammunition. Washington’s
counsel has filed an appeal under Anders v. California, 386 U.S.
738 (1967), raising the issues of whether the court complied
with Fed. R. Crim. P. 11 in taking Washington’s guilty plea,
whether the mandatory minimum sentence of fifteen years under
the Armed Career Criminal Act (ACCA) is cruel and unusual
punishment, and whether Washington’s sentence is reasonable.
The Government declined to file a brief and Washington did not
file a pro se supplemental brief. Finding no error, we affirm.
Counsel raised the issue of whether the district court
fully complied with the requirements of Rule 11. Our review of
the record leads us to conclude that the district court complied
with the requirements of Rule 11 and ensured that Washington’s
guilty plea was knowing and voluntary and supported by a
sufficient factual basis. See United States v. DeFusco, 949
F.2d 114, 116, 119-20 (4th Cir. 1991).
Counsel also raised the issue of whether the mandatory
minimum sentence of fifteen years under the ACCA is cruel and
unusual punishment. However, a fifteen-year sentence under the
ACCA is not cruel and unusual punishment and does not violate
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the Eighth Amendment. United States v. Presley, 52 F.3d 64, 68
(4th Cir. 1995).
With respect to Washington’s sentence, we review the
sentence under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). In conducting
this review, this court “must first ensure that the district
court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. If the sentence is free from
procedural error, this court then reviews it for substantive
reasonableness. Id. at 51. “Substantive reasonableness review
entails taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51). Even if this court would
have imposed a different sentence, “this fact alone is
‘insufficient to justify reversal of the district court.’” Id.
at 474 (quoting Gall, 552 U.S. at 51). Further, “[a]
statutorily required sentence . . . is per se reasonable.”
United States v. Farrior, 535 F.3d 210, 224 (4th Cir.), cert.
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denied, 129 S. Ct. 743 (2008). We conclude that the district
court did not abuse its discretion in sentencing Washington.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Washington’s conviction and sentence. This
court requires that counsel inform Washington, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Washington 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 Washington.
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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