US v. Marcus Jennings

Filing 920100503

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5190 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCUS NIKITA JENNINGS, a/k/a Marcus Jennings, a/k/a Marc Jennings, a/k/a Mark Jennings, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, District Judge. (6:06-cr-00004-nkm-1) Submitted: April 29, 2010 Decided: May 3, 2010 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Randy V. Cargill, Assistant Federal Public Defender, Christine Madeleine Spurell, Research and Writing Attorney, Roanoke, Virginia, for Appellant. Ronald Andrew Bassford, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcus Nikita Jennings pled guilty, pursuant to a plea agreement, to distribution of five grams or more of cocaine base, pursuant to 21 U.S.C. 841(a)(1) (2006). The conditional plea preserved Jennings' right to appeal the district court's denial of his motion to suppress. months' imprisonment. accordance with Anders Jennings was sentenced to 188 Jennings' attorney has filed a brief in v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but alleging that the district court erred in denying Jennings' motion to suppress. Jennings has not Although informed of his right to do so, filed a pro se supplemental brief. The Government did not file a reply brief. error, we affirm. Finding no reversible In reviewing the district court's ruling on a motion to suppress, we review the district court's factual findings for clear error, and its legal determinations de novo. United The facts States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). are reviewed in the light most favorable to the prevailing party below. 2007). United States v. Jamison, 509 F.3d 623, 628 (4th Cir. With these standards in mind, and having reviewed the transcript of the suppression hearing, we conclude the district court did not err in denying Jennings' motion to suppress. 2 We review Jennings' sentence for reasonableness under an abuse of discretion standard. * U.S. 38, 51 (2007). of both This the Gall v. United States, 552 review procedural Id. requires and appellate substantive consideration reasonableness of a sentence. sentence assess is procedurally the In determining whether a this court must first the This reasonable, court whether district Guidelines properly Id. calculated at 49-50. defendant's advisory range. court then must consider whether the district court considered the factors in 18 U.S.C. 3553(a) (2006), analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Id. "Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an `individualized assessment' based on the particular facts of the case before it." United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (citation omitted). Although the district court procedurally erred when it imposed Jennings' sentence without explicitly making an Though Jennings' plea agreement contained an appeal waiver in which Jennings agreed to waive his right to appeal his sentence, the Government has failed to assert this waiver. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders brief is filed, "the [G]overnment is free to file a responsive brief raising the waiver issue (if applicable) or do nothing, allowing this court to perform the required Anders review"). * 3 individualized Jennings' case, assessment because based Jennings on the not particular argue facts for of a did below sentence outside of his Guidelines range, we review the error for plain error. (4th Cir. 2010). United States v. Lynn, 592 F.3d 572, 579-80 Even if we assumed that the district court's lack of explanation of Jennings' sentence constituted an obvious error in violation of Carter, Fed. R. Crim. P. 52(b) requires Jennings to also show that the district court's lack of explanation had a prejudicial effect on the sentence imposed. See Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009). We find Jennings has failed to make such a showing. find Jennings' sentence reasonable. 491 F.3d 178, 193 (4th Cir. We further See United States v. Allen, (recognizing this court 2007) applies an appellate presumption of reasonableness to a withinGuidelines sentence). 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 Jennings, in writing, of the right to petition the Supreme Court of the United States for further review. If Jennings 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 4 was served on Jennings. We 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 5

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