US v. Cleveland Jordan, Jr.

Filing 920090709

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4846 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CLEVELAND JORDAN, JR., Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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