US v. Roger Smallwood

Filing 920090918

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5241

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROGER MIKEL SMALLWOOD, Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Samuel G. Wilson, District Judge. (5:07-cr-00065-sgw-1)

Submitted:

August 31, 2009

Decided:

September 18, 2009

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Fay F. Spence, Assistant Federal Public Defender, Roanoke, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Jeb T. Terrien, Assistant United States Attorney, Harrisonburg, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Roger Mikel Smallwood pled guilty to conspiracy to

distribute and possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (2006), and was sentenced guidelines arguing to 135 months of 188 in to prison, 235 well below the

advisory appeals,

range his

months. is

Smallwood

that

variance

sentence

unreasonable.

Finding no error, we affirm. When determining a sentence, the district court must calculate the appropriate advisory guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. , 128

§ 3553(a) (2006).

Gall v. United States, 552 U.S. 38,

S. Ct. 586, 596 (2007). imposition of a

Appellate review of a district court's "whether inside, just outside, or

sentence,

significantly outside the [g]uidelines range," is for abuse of discretion. Id. at 591. In imposing a variance sentence, the

district court "must consider the extent of the deviation and ensure support that the the justification of the is significantly . . compelling . [I]t to

degree

variance.

[is]

uncontroversial that a major departure should be supported by a more significant justification than a minor one." Id. at 597.

The district court followed the necessary procedural steps in sentencing Smallwood, appropriately treating the

guidelines as advisory, properly calculating and considering the 2

applicable

guidelines

range,

performing

an

individualized

assessment of the § 3553(a) factors to the facts of the case, and stating in open court the reasons for the sentence. States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). argued for a variance sentence and received one. articulated prosecution, Smallwood's its the reasons sentences for of the variance--the United

Smallwood The court delay in and

Smallwood's

co-defendants, these

rehabilitative

efforts--and

weighed

factors

against the seriousness of the offense, the large quantity of drugs foreseeable to Smallwood, and his role in the conspiracy. We conclude the district court did not abuse its

discretion in imposing the chosen sentence. affirm the district court's judgment.

Accordingly, we

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

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