US v. Cleveland Jordan, Jr.

Filing 920090709

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4846

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)

Submitted:

June 11, 2009

Decided:

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

On remand,

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

included

convictions

assault,

driving

with

suspended

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

The

court

stated

that

it

did

not

consider

the

disparity between crack and powder cocaine sentences to be a significant factor, but was more concerned with Jordan's

repeated offenses.

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

sufficient the

greater

necessary

comply

purposes

[§ 3553(a)]."

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.

review

procedural and substantive reasonableness of the sentence. at 597.

In determining whether the sentence is procedurally we must first assess whether the district court

reasonable,

The amendments to the guidelines for crack offenses were revised in 2007.

*

3

properly Id. at

calculated 596-97. range

the A

defendant's

advisory a

guideline

range.

sentence be

within an

properly

calculated of

guideline

may

afforded

appellate

presumption

reasonableness. (2007). considered presented We

Rita v. United States, 127 S. Ct. 2456, 2459 then consider whether the district the court

must § the

the by

3553(a) parties,

factors, and

analyzed

arguments the

sufficiently

explained

selected sentence. the substantive

Gall, 128 S. Ct. at 597. of the

Finally, we review "taking into

reasonableness

sentence,

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

within be

range,

afforded

presumption

reasonableness on appeal.

Rita, 127 S. Ct. at 2459.

Jordan

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

guideline range.

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

the

lowered guidelines

for

credit Jordan's attempts to further his education and training while in prison. as Although the in district court described the the

sentence

"reasonable,"

its

written

order,

court

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

dispense

argument

because in aid

and

contentions the court

adequately argument

presented not

materials

would

decisional process. AFFIRMED 6