US v. Daniel Sanders

Filing 920100319

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5233

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL ANTONIO SANDERS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00174-FL-2)

Submitted:

January 21, 2010

Decided:

March 19, 2010

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Daniel Antonio Sanders pled guilty to being an

accessory after the fact in a Hobbs Act robbery, 18 U.S.C. § 3 (2006), without a plea agreement, and was sentenced to a term of sixty-three months imprisonment. He appeals his sentence,

arguing that the district court abused its discretion in denying his request for a one-level downward variance to compensate for the government's refusal to move for a one-level reduction under U.S. Sentencing Guidelines Manual § 3E1.1(b) (2008). Sanders' co-defendant, Kendricus We affirm. robbed a

Williams,

convenience store and escaped in a vehicle driven by Sanders. They were immediately pursued by police. vehicle after a high-speed chase; both he Sanders crashed the and Williams were

arrested.

In an unprotected statement to the police following

his arrest, Sanders said he drove Williams to the store not knowing Williams intended to rob it, but that he saw a gun in Williams' waistband when Williams returned to the car, saw

Williams counting money, and heard Williams indicate that he had robbed the store. At his sentencing hearing, Sanders challenged an

enhancement recommended in the presentence report for possession or brandishing of a firearm during the offense under USSG

§ 2B3.1(b)(2)(C).

Sanders asserted that he was unaware that

Williams intended to rob the store and was not responsible for 2

conduct that occurred before he knowingly became involved in the offense. The district court overruled his objection, The

specifically holding that the objection was not frivolous.

court further found that Sanders had accepted responsibility and awarded him a two-level reduction under USSG § 3E1.1(a). The government nonetheless characterized Sanders'

objection as frivolous and refused to move for the additional one-level reduction available under § 3E1.1(b) when the

defendant has "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently[.]" Sanders responded that he had given early notice that he would plead guilty and requested a one-level variance to

offset the government's action.

The district court decided not

to grant a variance, stating that the government was "within its province to not move for the reasons it deems appropriate for that third point of acceptance of responsibility." When defense

counsel asked the government to explain for the record why it had refused a motion under § 3E1.1(b), the government stated: [T]he government has, in its view, applied the application note to 3E1.1 in a manner which accords with the prerogatives of the executive branch, and that is to not move in a case where the government does not feel that the defendant has fully accepted responsibility for his actions, and those actions

3

include the relevant conduct. And that specifically listed there in the application note. Sanders' The district court advisory imposed guideline a range of was 57-71

is months. months

sentence

sixty-three

imprisonment. On appeal, Sanders argues that the district court

abused its discretion when it denied his request for a one-level variance on the ground that the government had discretion to refuse to move for a one-level adjustment under § 3E1.1(b) for whatever reasons it deemed appropriate. We review a sentence for reasonableness under an abuse of discretion standard. (2007). This review Gall v. United States, 552 U.S. 38, 51 requires consideration of both the Id.

procedural and substantive reasonableness of a sentence.

After determining whether the district court properly calculated the defendant's advisory guideline range, we next consider

whether the district court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently States v. explained Carter, the 564 selected F.3d 325, sentence. 330 (4th Id.; Cir. see

United

2009)

(holding that, while the "individualized assessment need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case . . . and [be] adequate we to permit the

meaningful

appellate

review").

Finally,

review

4

substantive reasonableness of the sentence, "taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range." 511 F.3d 468, 473 (4th Cir. 2007). United States v. Pauley,

In this circuit, substantive

reasonableness review presumes that a sentence imposed within the properly calculated guidelines range is reasonable. United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (adopting presumption of reasonableness); see also Rita v. United States, 551 U.S. 338, 347 (2007) (upholding rebuttable presumption of reasonableness for within-guidelines sentence). Other withhold a circuits under have held that on a the government of may

motion

§ 3E1.1(b)

variety

grounds

unrelated to the timeliness of the guilty plea if its decision serves some legitimate government interest, equating the limits on its discretion under § 3E1.1(b) with the constraints to its filing a motion for a substantial assistance departure under USSG § 5K1.1, as set out in Wade v. United States, 504 U.S. 181, 186-87 (1992) (holding that government not obligated to file motion for substantial assistance departure, but refusal may not be based on unconstitutional motive and must be rationally

related to legitimate government end).

See United States v.

Johnson, 581 F.3d 994, 1003 (9th Cir. 2009) (holding that the desire to avoid "the expenditure of additional resources in

anticipation of and defending against an appeal is a legitimate 5

governmental interest"); United States v. Drennon, 516 F.3d 160, 163 (3d Cir. 2008) (government's refusal to make motion because defendant moved to suppress evidence was rationally related to legitimate government interest of "efficient allocation of the government's 515 F.3d litigating 379 (5th his resources"); Cir. 2008) to United (holding is States that proper v. Newson,

374, to

defendant's basis for

refusal

waive

right

appeal

government to refuse motion, "as it is rationally related to the purpose of the rule and is not based on an unconstitutional motive"); United States v. Moreno-Trevino, 432 F.3d 1181, 118586 (10th Cir. 2005) (prosecutors should have same discretion under § 3E1.1(b) as under § 5K1.1, citing Wade). Thus, the weight of authority currently favors the

application of the limits set forth in Wade to the government's discretion under § 3E1.1(b). Moreover, the sentencing court

retains the discretion to grant or deny a requested variance. The sentencing court's decision not to vary below the guideline range is presumptively reasonable, Rita, 551 U.S. at 347, and we conclude that Sanders has not rebutted the presumption of

reasonableness. Therefore, district facts court. legal We we affirm the with are sentence oral imposed by the the the

dispense

argument

because in

and

contentions

adequately

presented

6

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

7