US v. Gilmore Richards

Filing 920090814

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4990 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GILMORE RICHARDS, Defendant Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. Thomas E. Johnston, District Judge. (1:08-cr-00040-1) Submitted: July 20, 2009 Decided: August 14, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. John H. Tinney, Jr., TINNEY LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gilmore agreement to one Richards count of pled guilty pursuant of to a plea in distribution cocaine base, violation of 21 U.S.C. 841(a)(1) (2006). As part of the plea agreement, Richards waived his right to appellate review of the reasonableness of a sentence within the Guidelines range. district sentence court of 70 sentenced months' Richards to a The within-Guidelines counsel has imprisonment. Richards' filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning motion whether for a the district court erred and in denying the Richards' downward departure whether sentence imposed is reasonable. The Government does not seek to We affirm. court erred in enforce the plea agreement's appeal waiver. * Richards contends that the district denying his motion for a downward departure, pursuant to U.S. Because the Government does not seek enforcement of the appeal waiver, we need not consider whether the waiver is dispositive of this appeal. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal waiver that arguably barred the appeal on one issue because the Government had expressly elected not to argue waiver with respect to that issue); cf. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005) (enforcing a plea agreement's appeal waiver where the Government sought enforcement, the issues raised fell within the waiver's scope, and no claim was presented that the Government breached its obligations under the plea agreement). * 2 Sentencing Guidelines Manual 4A1.3 (2007), on the basis that his criminal history category over-represented the seriousness of his criminal history. A district court's refusal to depart from the applicable Sentencing Guidelines range does not provide a basis for appeal under 18 U.S.C. 3742 (2006), "unless the court failed to understand its authority to do so." States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). review of the record, we conclude that the district United After court clearly recognized its authority to depart but determined that a downward departure was not warranted. is not cognizable on appeal. A presentence determining review report a of the sentencing no error the transcript in and the In must Accordingly, this claim reveals sentencing. court defendant's sentence, district calculate properly the advisory Guidelines range and consider this range in conjunction with the factors set forth at 18 U.S.C. 3553(a) (2006). ___, 128 S. Ct. 586, Gall v. United States, 552 U.S. 38, (2007). We review a district 596-97 court's imposition of a sentence, "whether inside, just outside, or significantly outside the Guidelines range," under an abuseof-discretion standard. within the applicable 128 S. Ct. at 591. Guidelines range Further, sentences may be presumed reasonable on appeal. 473 (4th Cir. 2007). United States v. Pauley, 511 F.3d 468, 3 The district court followed the necessary procedural steps in sentencing Richards, properly calculating, treating as advisory, and considering the Guidelines range, performing an "individualized assessment" of the relevant 3553(a) factors, and stating in open court the reasons for its sentence. States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). United Richards' sentence, which is at the low end of the applicable Guidelines range and below the statutory maximum of twenty years' We imprisonment, may be presumed on appeal to be reasonable. conclude that the district court did not abuse its discretion in sentencing Richards. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court requires that counsel inform Richards, in writing, of the right to petition the Supreme Court of the United States for further review. If Richards requests that a petition be filed, but counsel believes that such a petition would be frivolous, then 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 was served on Richards. the facts and legal contentions are adequately presented in the 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5

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