US v. Milton Byard

Filing 920090217

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4423

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MILTON BYARD, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:06-cr-00165-5)

Submitted:

January 23, 2009

Decided:

February 17, 2009

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Milton Byard pled guilty to one count of conspiring to distribute a quantity of cocaine, in violation of 21 U.S.C.

§ 846 (2006).

The district court properly calculated Byard's

advisory Guidelines range to be forty-six to fifty-seven months of imprisonment, and sentenced him to serve forty-six months. Byard appeals, alleging the his sentence court did is not procedurally sufficiently We

unreasonable

because

district

consider the 18 U.S.C. § 3553(a) (2006) sentencing factors. * have reviewed the record and affirm.

After United States v. Booker, 543 U.S. 220 (2005), we review a sentence to determine whether it is unreasonable, Gall v.

applying a "deferential abuse-of-discretion standard." United States, 128 S. Ct. 586, 591, 594 (2007).

A district First,

court must engage in a multi-step process at sentencing.

the sentencing court must calculate the appropriate Guidelines range by making any necessary factual findings. Then the court should afford the parties "an Id. at 596. opportunity Id. to

argue for whatever sentence they deem appropriate."

Next,

it should consider the resulting advisory sentencing range in conjunction with the factors set out in 18 U.S.C. § 3553(a), and

Byard does not challenge the calculation of his advisory Guidelines range.

*

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determine whether the § 3553(a) factors support the sentence requested by either party. Id. Consideration of the factors in

§ 3553(a) does not require the sentencing court to "robotically tick through" every subsection of § 3553(a). Montes-Pineda, 445 F.3d 375, 380 (4th Cir. United States v. 2006) (internal

quotation marks and citation omitted). To determine whether a sentencing court abused its

discretion, we undertake a two-part analysis. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

United States v. First, we examine

the sentence for "significant procedural errors," and second, we evaluate the substance of the sentence. Id. Significant

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).

Id.

(quoting

"Substantive reasonableness review

entails taking into account the `totality of the circumstances, including range.'" the extent of any variance from the Guidelines

Id. (quoting Gall, 128 S. Ct. at 597).

An appellate

court may presume a sentence within the Guidelines range to be reasonable. Rita v. United States, 551 U.S. 338, __, 127 S. Ct.

2456, 2459, 2462 (2007).

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Here, the district court properly calculated Byard's Guidelines range and adequately noted its consideration of the § 3553(a) sentencing factors. We find no abuse of discretion in

the district court's decision to sentence Byard at the bottom of the Guidelines range. Accordingly, we affirm the district

court's judgment. facts and legal before

We dispense with oral argument because the contentions the court are and adequately argument presented not in aid the the

materials

would

decisional process. AFFIRMED

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