US v. Dominique Sanders

Filing 920090810

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5182

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DOMINIQUE TRACY SANDERS, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00007-LHT-1)

Submitted:

June 10, 2009

Decided:

August 10, 2009

Before TRAXLER, Judges.

Chief

Judge,

and

MICHAEL

and

SHEDD,

Circuit

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Raquel K. Wilson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dominique Tracy Sanders pled guilty pursuant to a plea agreement to one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and one count of of possession a drug and use of a firearm in was during the of to

commission 18 U.S.C. sixty-three months for

trafficking (2006). his

crime,

violation sentenced and

§ 924(c)(1) months his for

Sanders

narcotics

conviction, latter

sixty to run

weapons

conviction,

the

term

consecutive to the former term for a total of 123 months. Counsel for Sanders has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), explaining that she found no meritorious grounds for appeal because of the appellate waiver contained the in Sanders' plea of agreement, Sanders' but nonetheless on file pro and the a se his

challenging narcotics responding supplemental

reasonableness The

sentence to a

conviction. brief, brief. and We

Government has

declined filed

Sanders affirm

not

Sanders'

convictions

sixty-month sentence on the weapons conviction, but vacate his sixty-three month sentence on the narcotics conviction and

remand for re-sentencing on that conviction. In record review. in accordance this Prior case, to with Anders, for guilty we have reviewed issues trial the for

searching a 2

meritorious plea, a

accepting

court,

through colloquy with the defendant, must inform the defendant of, and determine that the defendant understands the nature of, the charges to which the plea is offered, any mandatory minimum penalty, the maximum possible penalty he faces, and the various rights he is relinquishing by pleading guilty. 11(b). Fed. R. Crim. P.

"In reviewing the adequacy of compliance with Rule 11,

this Court should accord deference to the trial court's decision as to how best to conduct States the v. mandated DeFusco, colloquy 949 F.2d with 114, the 116

defendant."

United

(4th Cir. 1991). A review of the record reveals that the magistrate judge fully complied with the Rule 11 requirements, ensuring that Sanders' plea was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed the offenses to which he was pleading guilty. Because we find that no error occurred during

the Rule 11 hearing, we affirm Sanders' convictions. We nonetheless conclude that Sanders' sentence on his narcotics conviction is unreasonable and should be vacated. *

Because Sanders was sentenced to the statutory minimum on his weapons conviction, we affirm the district court's sentence on this conviction. See United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008) ("A statutorily required sentence . . . is per se reasonable.") (emphasis in original), cert. denied, 129 S. Ct. 743 (2008).

*

3

After United States v. Booker, 543 U.S. 220 (2005), this court reviews a sentence on appeal for reasonableness, using an abuse of discretion standard of review. Ct. 586, 597 (2007). Gall v. United States, 128 S.

The first step in this review requires the

court to ensure that the district court committed no significant procedural error. (4th Cir. 2008). (or United States v. Evans, 526 F.3d 155, 161 Procedural errors include the "failing to

calculate

improperly

calculating)

Guidelines

range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence-including Guidelines range." an explanation for any deviation from the

Gall, 128 S. Ct. at 597.

If, and only if,

this court finds the sentence procedurally reasonable can the court consider the substantive reasonableness of the sentence imposed. 2009). We find that the district court procedurally erred United States v. Carter, 564 F.3d 325, 328 (4th Cir.

when it sentenced Sanders on the narcotics conviction without stating in open court the particular reasons supporting the

sentence. defendant imposing a

Under our recent decision in Carter, "[w]here the or prosecutor presents than nonfrivolous that set reasons forth in for the

different

sentence

advisory Guidelines, a district judge should address the party's 4

arguments

and

explain

why

he

has

rejected

those

arguments."

Carter, 564 F.3d at 328.

Even when the district court imposes a

within Guidelines sentence, Carter makes clear that the district court must place on the record an "individualized rationale" explaining its sentence. Id. at 328-30. Here, the district We remand for that

court failed to provide such an explanation. purpose.

Having reviewed the record in this case and finding no other meritorious issues for review, we affirm Sanders'

convictions, as well as his sentence on the weapons conviction, vacate his sentence on the narcotics conviction, and remand to the district court for re-sentencing on that conviction in

accordance with this opinion.

This court requires that counsel

inform Sanders in writing of his right to petition the Supreme Court of the United States for further review. If Sanders

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may motion this court for leave to withdraw from representation. Counsel's We

motion must state that a copy thereof was served on Sanders. dispense with oral argument because the facts and

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 5