US v. Short

Filing 920100629

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4881

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER TERRELL SHORT, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Senior District Judge. (1:07-cr-00084-WLO)

Submitted:

April 12, 2010

Decided:

June 29, 2010

Before TRAXLER, Judges.

Chief

Judge,

and

GREGORY

and

AGEE,

Circuit

Affirmed by unpublished per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Pursuant to a plea agreement, Christopher Terrell

Short pled guilty to possession with intent to distribute 1000.2 grams § of cocaine hydrochloride, The in violation court of 21 him U.S.C. as a

841(a)(1)

(2006).

district

sentenced

career offender to a 190-month term of imprisonment. Short's counsel 386 has U.S. filed 738 a brief pursuant that to

On appeal, Anders are v. no

California, meritorious

(1967), but

stating

there the

issues

for

appeal

questioning

procedural

reasonableness of Short's sentence. supplemental brief.

Short has filed a pro se

Finding no reversible error, we affirm.

Although neither Short nor his counsel challenges the adequacy of plea hearing on appeal, we have reviewed the

transcript of the plea hearing for plain error.

See United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing standard). Our careful review of the record convinces us that

the district court substantially complied with the mandates of Fed. R. Crim. P. 11 in accepting Short's guilty plea and that any omission on the court's part did not affect Short's

substantial rights.

Moreover, the district court ensured that

Short'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).

2

Short

and

his

counsel

question

the

procedural

reasonableness of Short's sentence.

We review a sentence for Gall v.

reasonableness under an abuse-of-discretion standard. United States, 552 U.S. 38, 51 (2007).

This review requires

appellate consideration of both the procedural and substantive reasonableness whether the of a sentence. court Id. This court must the assess

district

properly

calculated

advisory

guidelines range, considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). this court reviews the substantive reasonableness Finally, of the

sentence, "examining the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010). Counsel first asserts that Short's prior North

Carolina convictions should not count separately for purposes of designating Short as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2006 & Supp. 2007). Because an

intervening arrest separated Short's two state court convictions for felony possession with intent to sell and deliver cocaine, 3

the district court properly counted the convictions as separate offenses. See USSG § 4A1.2(a)(2). To the extent counsel also

attempts to challenge the validity of Short's January 31, 2001 predicate offense, he may not do so in this appeal. See

Custis v. United States, 511 U.S. 485, 493-97 (1994). Next, predicate Short on asserts which in the his pro se brief court that relied the to

offenses

district

classify him as a career offender did not constitute felonies because he was sentenced to less than twelve months. Short's

claim is foreclosed by our decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005). 1 to relief on this claim. Counsel also suggests that the district court did not adequately state its reasons for imposing a 190-month sentence. 2 Because Short argued in the district court for a sentence below the career offender guidelines range, we conclude that he has preserved this claim for appellate review. See Lynn, 592 F.3d Thus, Short is not entitled

Short relies on an unpublished decision in United States v. Lemons, 280 F. App'x 258, 258-59 (4th Cir.), cert. denied, 129 S. Ct. 238 (2008), as support for his claim of procedural error. However, Short mischaracterizes the holding in Lemons. Based on the case cited in the issue statement in the formal brief, we liberally construe the claim as challenging the adequacy of the district court's reasons for the selected sentence.
2

1

4

at 578, 581.

We have reviewed the sentencing transcript and See id. at 576 (stating standard district court's explanation was

find no abuse of discretion. of review). Although the

brief, the court specifically considered the facts of Short's case in imposing a within-guidelines sentence. U.S. at 51 (stating that district court See Gall, 552 "must make an

individualized assessment based on the facts presented"); Lynn, 592 F.3d at 576 ("[I]n explaining a sentencing decision, a court need not robotically tick through § 3553(a)'s every subsection, particularly (internal when imposing marks a within-Guidelines citation omitted). sentence.") Thus, the

quotation

and

district court committed no procedural error in sentencing Short as a career offender. 3 Finally, turning to counsel's claim that the career offender guidelines range overstated Short's criminal history, we lack the authority to review a sentencing court's decision not to depart downward "unless the court failed to understand its authority to do so." 371 (4th Cir. 2008). hearing, recognized
3

United States v. Brewer, 520 F.3d 367, Based on our review of the sentencing that to the district but court clearly that a

we

are its

convinced authority

depart

determined

In light of our conclusion, we need not address counsel's argument that, in the event Short was not a career offender, he should be placed in criminal history category II.

5

downward departure was not warranted on the facts of Short's case. Thus, this claim is not reviewable on appeal. Id.

In accordance with Anders, we have reviewed the entire record for any we meritorious affirm the issues and have found none. This

Accordingly,

district

court's

judgment.

court requires that counsel inform his client, in writing, of the right to petition the Supreme Court of the United States for further filed, review. but If the client requests such a that a petition would be be

counsel

believes

that

petition

frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral

a copy thereof was served on the client.

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

6