US v. Thang Cao

Filing 920090602

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4023 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THANG CAO, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00055-RJC-20) Submitted: May 28, 2009 Decided: June 2, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Thomas Tullidge Cullen, OFFICE OF THE UNITED STATES ATTORNEY, Steven R. Kaufman, Assistant United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thang Cao pled guilty, pursuant to a written plea agreement, to conspiracy to possess with intent to distribute methylenedioxymethamphetamine and marijuana, in violation of 21 U.S.C. 841, 846 (2006). He was sentenced to eighty-seven months' imprisonment. Cao's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in his view, there are no meritorious grounds for appeal, but questioning whether the sentence was reasonable. a pro se supplemental brief. file a reply brief. Cao has filed The Government has declined to Finding no reversible error, we affirm. We review sentences imposed by the district court for reasonableness, applying an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We must first ensure that the district court committed no procedural error, such as improperly calculating the guidelines range, considering the guidelines to be mandatory, failing to consider the 18 U.S.C. 3553(a) (2006) factors, sentencing based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 128 S. Ct. at 597. In the absence of procedural errors, we consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including any variance from the guidelines range. 2 Pauley, 511 F.3d at 473. While we may presume a sentence within the guidelines range to be reasonable, we may not presume a sentence outside the range to be unreasonable. we give deference to the district court's Id. Moreover, that the decision 3553(a) factors justify a variant sentence and to the extent of that variance. Even if the reviewing court would have imposed a different sentence, this fact alone is not sufficient to justify reversing the district court. In imposing Cao's sentence, Id. at 473-74. the district court correctly calculated the guidelines range and considered both the advisory nature of the guidelines and the 3553(a) factors. The court provided adequate reasons for its decision to grant a downward departure we and to deny any further sentence variance. is both Accordingly, conclude that Cao's procedurally and substantively reasonable. In reiterates his pro se he supplemental presented brief, at Cao merely for a the arguments sentencing downward departure. the entire record In accordance with Anders, we have reviewed for any meritorious issues and have found none. Accordingly, we affirm the district court's judgment. This court requires that counsel inform Cao, in writing, of his right to petition the Supreme Court of the United States for further review. If Cao requests that a petition be filed, but counsel believes that such a petition would be frivolous, then 3 counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because the are and adequately argument presented not in aid the the was served on Cao. facts and legal before contentions the court materials would decisional process. AFFIRMED 4

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