US v. Christopher Lord

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-274-1 Copies to all parties and the district court/agency. [998406795] [08-5043]

US v. Christopher Lord

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5043 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CHRISTOPHER LYNN LORD, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Jr., District Judge. (1:07-cr-00274-1) Submitted: July 20, 2010 SHEDD, Circuit Decided: Judges, and August 19, 2010 HAMILTON, Senior

Before KING and Circuit Judge.

Affirmed by unpublished per curiam opinion. J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Christopher written plea Lynn Lord to one pled guilty, of pursuant to a

agreement,

count

using

interstate

commerce to attempt to persuade, induce, entice, or coerce a minor to engage in illegal sexual activity, * in violation of 18 U.S.C. § 2422(b) (2006). The district court calculated

Lord's Guidelines range at 235 to 293 months' imprisonment, see U.S. Sentencing Guidelines Manual (2006), and sentenced Lord to 235 months' imprisonment and twenty-five years' supervised

release.

Lord timely appealed.

On appeal, counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he raises two sentencing issues. Lord has filed a pro se

supplemental brief raising several sentencing challenges and a challenge to his conviction. We affirm.

Counsel questions whether the district court erred in denying Lord's request for a variant sentence below the

Guidelines range.

However, a district court's refusal to depart

from the applicable Guidelines range does not provide a basis for appeal under 18 U.S.C. § 3742(a) (2006), "unless the court failed to understand its authority to do so." Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
*

United States v.

After review of the

Specifically, the indictment alleged that the sexual activity would violate N.C. Gen. Stat. § 14-202.1 (2009), which prohibits taking indecent liberties with a minor. 2

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record, we find no evidence that the district court failed to understand its authority to impose a below-Guidelines sentence. Accordingly, this claim is not cognizable on appeal. Turning to the sentence imposed, we review it "under a deferential abuse-of-discretion standard." Gall v. United

States, 552 U.S. 38, 41 (2007). "must first ensure that the

In conducting this review, we district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence." Id. at 51. "When rendering a sentence, the

district court must make an individualized assessment based on the facts presented," United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted), and must "adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing," Gall, 552 U.S. at 50. "When imposing a

sentence within the Guidelines, however, the [district court's] explanation need not be elaborate or lengthy because

[G]uidelines sentences themselves are in many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing 3 policy." United States v.

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Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation marks omitted). Once we have determined that the sentence is free of procedural error, of the we must sentence, consider "tak[ing] the into substantive account the

reasonableness

totality of the circumstances."

Gall, 552 U.S. at 51.

If the

sentence is within the appropriate Guidelines range, we apply a presumption on appeal that the sentence is reasonable. States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Lord challenges the district court's calculation of United

the base offense level on the basis that the presentence report ("PSR"), which the district court adopted, improperly found him to be a repeat and dangerous sex offender against minors, see USSG § 4B1.5. Lord, however, has not offered any evidence to

the contrary or specifically explained why the PSR is inaccurate or unreliable. His mere disagreement with the PSR's assessment

of his behavior, particularly on appeal for the first time, is, without dispute. (4th Cir. more, See 1990). insufficient United to put v. the Terry, to PSR's 916 findings F.2d the 157, into 162

States

Because

Lord

failed

make

required

affirmative showing that the PSR was inaccurate or unreliable, the district court more was "free to or adopt [its]

findings . . . without

specific

inquiry

explanation."

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Id. (internal quotation marks omitted).

We accordingly affirm

the district court's calculation of Lord's base offense level. Additionally, we conclude that the district court did not otherwise commit reversible procedural error in imposing advisory

sentence.

The

court

correctly

calculated

the

Guidelines range and heard argument from counsel and allocution from Lord. The court considered the § 3553(a) factors and

explained that the within-Guidelines sentence was warranted in light of the nature and circumstances of the offense, Lord's history and characteristics, and the need to protect the public from further crimes by Lord. Further, neither counsel nor Lord

offers any grounds to rebut the presumption on appeal that the within-Guidelines sentence of 235 months' imprisonment is

substantively reasonable. Next, counsel questions whether the district court

erred in not ordering the 235-month imprisonment term to run concurrently to the prison term Lord was then serving for a violation of his state probation. Lord was serving at the time of However, as the prison term sentencing for the subject

federal conviction pertained to an unrelated state conviction, the district court was free to impose a concurrent, partially concurrent, or consecutive sentence on Lord. See USSG

§ 5G1.3(c), p.s.

5

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In his pro se brief, Lord contends that the district court erred by failing to consider USSG § 5G1.3(c), p.s., when it ordered the 235-month prison term to run consecutive to,

rather than concurrent with, his undischarged state prison term. Although we ordinarily review legal questions concerning the

application of the Sentencing Guidelines de novo, see United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010), where a defendant argues on appeal that the district court erred in its consideration of USSG § 5G1.3 p.s., but did not invoke the

Guideline or argue that he was entitled to a concurrent sentence in the district court, we review only for plain error, United States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004). not demonstrated error under either standard of Lord has review.

Although the district court did not specifically mention USSG § 5G1.3(c), p.s., at the sentencing hearing, the provision was cited in the PSR, and it is clear from the record that the district court considered the PSR as well as the arguments by counsel for and against a concurrent sentence. can fairly infer that the district court Accordingly, we considered USSG

§ 5G1.3(c), p.s., and Lord has not shown any error.

See United

States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) ("A [district] court need not engage in ritualistic incantation in order to establish its consideration of a legal issue. It is sufficient

if . . . the district court rules on issues that have been fully 6

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presented for determination. court's ultimate ruling.").

Consideration is implicit in the

Lord also raises a pro se challenge to the court's imposition release control of a special condition that he not of his term of supervised or not

providing any

"view,

purchase,

possess, but

sexually

explicit

materials

including,

limited to[,] pictures, magazines, video tapes, movies, or any material obtained through access to any computer or any material linked to computer access or use." Because Lord did not object

to the special condition at the time of sentencing, we review only for plain error. See United States v. Rodriguez-Rodriguez, After review of the record, is reasonable, given Lord's

441 F.3d 767, 772 (9th Cir. 2006). we conclude that the condition

background and the need for the district court to protect the public. Lord thus fails to show plain error. Turning to Lord's conviction, because he did not move in the district court to withdraw his guilty plea, the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See United Our us to

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). review of the transcript of the plea hearing leads

conclude that the district court substantially complied with the mandates of Rule the 11 in accepting reveals Lord's the guilty district plea. court

Critically,

transcript

that

ensured the plea was supported by an independent factual basis 7

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and that Lord entered the plea knowingly and voluntarily with an understanding DeFusco, 949 of the consequences. 114, 116, See United (4th States v.

F.2d

119-20

Cir.

1991).

Accordingly, no plain error occurred in the conduct of the plea proceeding. Finally, we reject as unsupported by the record

Lord's claim that he is actually innocent of the offense to which he pled guilty because the Government failed to show that the activity he attempted to induce was sexual activity. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. We therefore affirm the district court's judgment.

This court requires that counsel inform Lord, in writing, of the right to petition the Supreme Court of the United States for further review. If Lord 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 the are and adequately argument presented not in aid the the

was served on Lord. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED

8