US v. Damion Kettle

Filing 920100216

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5093

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMION KETTLE, a/k/a Chris White, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:08-cr-00208-HEH-6)

Submitted:

December 16, 2009

Decided:

February 16, 2010

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Barbara L. Hartung, Richmond, Virginia, for Appellant. Angela Mastandrea-Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Damion Kettle appeals his eighty-seven month sentence for conspiracy to distribute and possess with intent to

distribute marijuana, in violation of 21 U.S.C. §§ 841(a), 846 (2006). Appellate counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), questioning whether the but district court's there sentence are filed no a was substantively grounds unreasonable, for appeal. We

concluding

meritorious pro se

Additionally, affirm. We

Kettle

supplemental

brief.

review

a

sentence

for

reasonableness

under

an

abuse-of-discretion standard. 38, 51 (2007). both the

Gall v. United States, 552 U.S.

This review requires appellate consideration of and substantive reasonableness of a

procedural Id. In

sentence.

determining

whether

a

sentence

is

procedurally

reasonable, we first assess whether the district court properly calculated the defendant's advisory guideline range. 552 U.S. at 49, 51. See Gall,

We then consider whether the district court

failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, selected a sentence

based on "clearly erroneous facts," or failed to sufficiently explain the selected sentence. imposing a sentence, the See id. at 49-50, 51. court "`must make When an

district 2

individualized United States

assessment v. Carter,

based 564

on

the 325,

facts 328 (4th

presented.'" Cir. 2009)

F.3d

(quoting Gall, 552 U.S. at 50) (emphasis omitted). Finally, we review the substantive reasonableness of the sentence, "taking into account the `totality of the

circumstances, including the extent of any variance from the Guidelines range.'" United States v. Pauley, 511 F.3d 468, 473 When reviewing

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).

the district court's application of the sentencing guidelines, we review findings of fact for clear error and questions of law de novo. Cir.), United States v. Osborne, 514 F.3d 377, 387 (4th denied, the 128 S. Ct. 2525 (2008). We afford range a a

cert.

sentence

within

properly

calculated

guideline

presumption of reasonableness.

United States v. Green, 436 F.3d

449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S. 338, 341, 347 (2007). Kettle raises two challenges to the procedural

reasonableness of his sentence.

Kettle first challenges on two

grounds the district court's application of a two offense level enhancement States for possession of a firearm, Guidelines pursuant Manual, to United

Sentencing

Commission,

("USSG")

§ 2D1.1(b)(1). improper

First, Kettle asserts that this enhancement was he was never indicted for possession of a

because

firearm during the commission of a crime, and the Government 3

failed to prove this allegation. that the Government the weapon failed during to the

Alternatively, Kettle contends demonstrate commission that of he the actively offense.

employed

Because Kettle's two alternative arguments against application of a firearms enhancement are made for the first time on appeal, our review is for plain error. See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993). A two-level increase is authorized under § 2D1.1(b)(1) if the defendant possessed Note a 3 dangerous to § 2D1.1 weapon during that the the

offense.

Application

explains

enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." The Government "need show only that the weapon was United

possessed during the relevant illegal drug activity." States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

Here, it is clear that the district court did not err in enhancing Kettle's offense level for possession of a firearm. The statement of facts, to which Kettle agreed, describes that a firearm following was a found in Kettle's delivery residence of during to a search by

controlled

marijuana

Kettle

narcotics agents in 2006. during the relevant

Thus, because the firearm was present activity, the enhancement was

illegal

proper, and Kettle's claims are without merit.

4

Additionally, Kettle asserts that the district court erred in improperly future considering filing of a the motion possibility for a of the

Government's

substantial

assistance reduction.

Kettle bases this claim on the following

exchange between the district judge and the Government, which occurred immediately after the Government gave its argument

regarding sentencing:

"THE COURT:

Does it appear that there is

a likely prospect that Mr. Kettle will be back before the Court for reconsideration of a sentence at a later time? MS.

MASTANDREA-MILLER:

Yes, sir, I believe so."

There is at least some authority to support Kettle's contention that it would be inappropriate for a judge to

consider the likelihood of a defendant's future cooperation when determining a sentence. See United States v. Barnette, 427 F.3d

259, 262 (4th Cir. 2005) ("A sentencing court cannot allow `the prospect of Rule 35(b) relief in the future' to influence or alter its decision on a motion for a downward departure under [USSG] § 5K1.1."). Though this is an issue of first impression

before us, the Sixth Circuit has held that "sentencing courts cannot consider the potential for a future sentence reduction in imposing sentence." (6th Cir. 2009). United States v. Recla, 560 F.3d 539, 545

However, because this objection was not raised

before the district court, our review is for plain error on appeal. See Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 731-32. 5

Here,

Kettle

is

unable

to

demonstrate

plain

error.

The district court merely raised the question of whether Kettle would likely be back before the court for a future

reconsideration of his sentence. that the judge actually

There is no evidence, however, the sentence upon this

based

consideration.

Indeed, the record reflects that the district

judge made an individualized assessment of the proper sentence, applying the appropriate 18 U.S.C. § 3553(a) factors in

determining Kettle's sentence.

Accordingly, we find that the

district court did not commit procedural error in determining Kettle's sentence. Next, Kettle's counsel challenges the substantive

reasonableness of Kettle's sentence. that the district court acted

Kettle's counsel argues in imposing a

unreasonably

sentence at the highest end of the advisory guidelines range, in light of the fact that it was drastically in excess of any prior sentence that Kettle had received and was unnecessarily long to deter future criminal conduct. However, this contention is

without merit. a properly

Under Rita, this court affords a sentence within calculated guideline range a presumption of

reasonableness.

551 U.S. at 347; see Green, 436 F.3d at 457.

Kettle's counsel does not disclaim that his advisory guideline range was properly Kettle's calculated counsel 6 by the district that court. was

Additionally,

concedes

Kettle

sentenced within this range. for rebuttal did of the

Finally, Kettle provides no basis Accordingly, in the district to

presumption. its discretion

court

not

abuse

sentencing

Kettle

eighty-seven months' imprisonment. Kettle raises two other issues in his pro se

supplemental brief.

First, Kettle contends that his guilty plea

was involuntary, as he did not understand the nature of the charge against him. The record, however, reflects that the

magistrate judge conducted a thorough plea colloquy, wholly in compliance with Federal Rule of Criminal Procedure 11. During

the colloquy, the magistrate judge explained the nature of the charge against Kettle, and Kettle affirmed that he understood the charge. the The judge later questioned him, whether and Kettle Kettle again

understood

pending

charge

against

affirmed that he did. his prior sworn

Accordingly, as a defendant is bound by in the absence of clear and

statements

convincing evidence to the contrary, we find that this issue is without merit. See Blackledge v. Allison, 431 U.S. 63, 73-74

(1977); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (courts can rely on statements made in open court at

subsequent collateral proceedings). Finally, Kettle contends that his attorney failed to make a reasonable effort to explain to Kettle the meaning of the Anders brief and notice, in violation 7 of United States v.

Santiago, 495 F.3d 27, 30 (2d Cir. 2007).

In Santiago, the

Second Circuit held that, where a defendant may be illiterate, Anders notice documents alone are insufficient to apprise the defendant of the substance of the Anders brief and the

defendant's right to oppose it, without some additional effort "to ensure that their contents are communicated to the defendant orally." pro se Id. brief Nevertheless, as Kettle is literate and filed a in response is to his counsel's and this Anders issue brief is and

notice, merit.

Santiago

inapplicable

without

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 Kettle, in writing, of the right to petition review. the If Supreme Kettle Court of the that United a States be for further but

requests

petition

filed,

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

was served on Kettle. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials

8

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

9