United States v. Worthy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4869
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ZANTWAN DEVORRIS WORTHY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:07-cr-00127-WLO)
Submitted: June 11, 2009 Decided: September 2, 2009
Before TRAXLER, Chief Judge, and MICHAEL and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a guilty plea, Zantwan Devorris Worthy was
convicted of distributing cocaine hydrochloride, in violation of
21 U.S.C.A. § 841 (West 2000 & Supp. 2009). The district court
sentenced Worthy to 188 months’ imprisonment. Worthy appeals
his sentence, arguing that the district court erred by viewing
the sentencing guidelines as mandatory, failing to consider the
sentencing factors in 18 U.S.C. § 3553(a) (2006), failing to
provide an adequate explanation for refusing to grant a downward
variance, and imposing an unreasonably lengthy sentence.
Finding no error, we affirm.
This court reviews a sentence for abuse of discretion,
regardless of whether the sentence falls inside or outside the
guideline range. Gall v. United States, 552 U.S. 38, ___, 128
S. Ct. 586, 591 (2007). First, we must ensure that the district
court committed no significant procedural error. United
States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,
128 S. Ct. 2525 (2008). Procedural errors include “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.” Gall, 128 S. Ct. at 597. Further, a district court
must provide an “individualized assessment” based upon the
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specific facts before it. United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009). If the sentence is procedurally
reasonable, the court then considers its substantive
reasonableness, taking into account the totality of the
circumstances. Gall, 128 S. Ct. at 597.
Worthy argues that the district court failed to make
specific findings relevant to § 3553(a)’s sentencing factors and
did not adequately explain its refusal to grant a downward
variance. Specifically, Worthy complains that the district
court did not address his argument that the presentence report
unduly emphasized his criminal history because he did not
actually commit one of the crimes included in his criminal
history.
The district court discussed Worthy’s criminal
history, focusing on his prior conviction for cocaine
trafficking. The district court provided an individualized
assessment of Worthy’s crime and circumstances, determining the
sentence only after discussing the seriousness of Worthy’s
offense, his prior drug trafficking conviction, his education,
the support shown by his family and community, the need to deter
others from committing the same crime, and the possibility of
his rehabilitation. Thus, the district court satisfactorily
explained its reasons supporting the sentence.
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Worthy also contends the sentence was procedurally
flawed because the district court failed to consider the
sentencing guidelines as advisory. We disagree. During the
sentencing hearing, the experienced district judge explained on
several occasions that the guidelines were simply
recommendations that the sentencing court was not bound to
follow.
Finally, Worthy argues that the district court imposed
an unreasonably lengthy sentence. This court presumes on appeal
that a sentence within a properly calculated Guideline range is
reasonable. Rita v. United States, 551 U.S. 338, 341, 347
(2007); United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007). Upon careful review, we are unpersuaded that Worthy’s
arguments are adequate to overcome that presumption.
Accordingly, we affirm the judgment of the district
court. Because Worthy is represented by counsel, we deny his
motion to file a pro se supplemental brief. 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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