US v. Cleveland Jordan, Jr.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff Appellee, v. CLEVELAND JORDAN, JR., Defendant Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:06-cr-00033-RBS-TEM-1)
June 11, 2009
July 9, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Keith Loren Kimball, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, William D. Muhr, Assistant United States Attorney, Erin DeBoer, Third Year Law Student, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Cleveland Jordan, Jr., pled guilty to three counts of possession of crack cocaine with intent to distribute, 21 U.S.C. § 841(a) (2006). and we remanded He previously appealed his 108-month sentence his case for resentencing in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007).
the district court applied the revised guidelines applicable to crack offenses and reduced Jordan's sentence to 100 months
imprisonment. sentence is
Jordan appeals his sentence, arguing that his both procedurally and substantively unreasonable.
We affirm. On remand, Jordan requested a sentence at the low end of the guideline range. The district court reviewed the
analysis it made at Jordan's first sentencing of the 18 U.S.C. § 3553(a) (2006) factors as they applied in Jordan's case. court noted that Jordan for had a "poor criminal record," a The which
license, and possession of marijuana and cocaine, as well as many arrests on charges that were later dismissed. The court
noted that Jordan had received a deferred sentence for his prior state drug conviction, that he had committed the current three federal drug offenses within a short period of time, that he was a recidivist, and that he had not been deterred by his previous lenient treatment. 2
disparity between crack and powder cocaine sentences to be a significant factor, but was more concerned with Jordan's
The court observed that it still believed
the original 108-month sentence had been "generous," by which it explained that it meant the sentence was good for Jordan. The
court added that, because "the law ha[d] changed," * and Jordan was "making some progress" while in custody, it would impose a reduced sentence of 100 months imprisonment. that a sentence than of 100 months to would "be with The court stated but not of
In a written order, the court stated that, having
considered Kimbrough, the amended guidelines, and the § 3553(a) factors, "the court finds that a sentence of one hundred (100) months is appropriate and reasonable in this case." We review a sentence for reasonableness under an abuse of discretion standard. 597 (2007). This Gall v. United States, 128 S. Ct. 586, requires us to consider both the Id.
procedural and substantive reasonableness of the sentence. at 597.
In determining whether the sentence is procedurally we must first assess whether the district court
The amendments to the guidelines for crack offenses were revised in 2007.
properly Id. at
calculated 596-97. range
reasonableness. (2007). considered presented We
Rita v. United States, 127 S. Ct. 2456, 2459 then consider whether the district the court
must § the
selected sentence. the substantive
Gall, 128 S. Ct. at 597. of the
Finally, we review "taking into
account the totality of the circumstances, including the extent of any variance from the Guidelines range." Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In evaluating the sentencing court's explanation of a selected sentence, we have consistently held that, while a United States v.
district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or
discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated guideline range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At
the same time, the district court "must make an individualized assessment based on the facts presented." Gall, 128 S. Ct. at The
597; United States v. Carter, 564 F.3d 325 (4th Cir. 2009).
reasons articulated by the district court for a given sentence need not be "couched in the precise language of § 3553(a)," so 4
long as the "reasons can be matched to a factor appropriate for consideration . . . and [are] clearly tied [to the defendant's] particular situation." 658 (4th Cir. 2007). United States v. Moulden, 478 F.3d 652, Where the parties present nonfrivolous
reasons for imposing a different sentence from that set forth in the advisory guideline range, the district court should address the party's arguments and explain why they were rejected. 127 S. Ct. at 2468. Jordan maintains that the district court "paid only lip service" to the requirement in § 3553(a) that it "impose a sentence sufficient, but not greater than necessary," and Rita,
instead erred by imposing a sentence that the court believed to be "`appropriate and reasonable.'" The guideline sentence and was may We disagree. a correctly a calculated of
reasonableness on appeal.
Rita, 127 S. Ct. at 2459.
argues that the district court must explain why a lower sentence would have been insufficient, and failed to do so in his case. In fact, the court explained, at the first sentencing hearing, that a sentence below the guideline range would not be
sufficient because Jordan had not been deterred from continuing his criminal behavior by prior lenient sentences. Jordan requested only a sentence near the low On remand, end of the
The court explained that it would not impose a 5
sentence at the low end because the § 3553(a) factors had not changed, because but of the court gave him a slightly crack lower offenses sentence and to
credit Jordan's attempts to further his education and training while in prison. as Although the in district court described the the
manifestly did not apply the appellate standard, which permits a presumption that a sentence within a correctly calculated
guideline range is reasonable. procedure set out in Gall.
The court instead followed the Therefore, the sentence is not
procedurally unreasonable. Jordan argues that his 100-month sentence is greater than necessary because he had previously received only light sentences--a total of fifteen weekends in jail--for his prior criminal convictions. However, because the district court
considered the § 3553(a) factors on the record and responded to Jordan's argument for a lower sentence, we conclude that the sentence was not substantively unreasonable. We district facts therefore We affirm the with are and sentence oral imposed by the the the the
court. legal before
because in aid
contentions the court
decisional process. AFFIRMED 6
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