US v. Short

Filing 920100629

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4881 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER TERRELL SHORT, Defendant -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 Chief Judge, and GREGORY and AGEE, Circuit Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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