US v. James Byrd, III

Filing 920100115

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7703 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES EDWARD BYRD, III, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:01-cr-00178-MR-1) Submitted: October 16, 2009 Decided: January 15, 2010 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Sandra J. Edward R. Carolina; Asheville, Barrett, Asheville, North Carolina, for Appellant. Ryan, Acting United States Attorney, Charlotte, North Amy E. Ray, Assistant United States Attorney, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted James Edward Byrd, III of conspiracy to distribute and possess with intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. 846 (2006), and the district court sentenced him to 240 months of imprisonment. 1 In a prior appeal, we vacated Byrd's sentence and remanded for resentencing consistent with Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007). 278 F. App'x 277 (4th the Cir. 2008) See United States v. Byrd, (No. court 06-5162). imposed a At the resentencing sentence. 2 sentence. hearing, district 240-month On appeal, 3 Byrd challenges the reasonableness of his We affirm. This court reviews a sentence for reasonableness under an abuse of discretion standard. Gall, 128 S. Ct. at 597. This review requires appellate consideration of both the procedural and substantive reasonableness of a sentence. Id. After determining whether the district court properly calculated the The initial sentence imposed by the district court was 360 months. See United States v. Byrd, 151 F. App'x 218 (4th Cir. 2005) (No. 04-4953) (vacating 360-month sentence and remanding for resentencing). The guidelines ranges was 360 months to life imprisonment but became 240 months, the statutory maximum sentence. U.S. Sentencing Guidelines Manual 5G1.1(a) (2007). Byrd also filed a pro se supplemental brief challenging his sentence. We have carefully reviewed the claims raised therein and find them to be without merit. 3 2 1 2 defendant's advisory guidelines range, we must then consider whether the district court considered the factors in 18 U.S.C. 3553(a) (2006), analyzed any arguments presented by the Id. parties, and sufficiently explained the selected sentence. at 596-97; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally, we review the substantive reasonableness United States v. Pauley, 511 F.3d 468, 473 of the sentence. (4th Cir. 2007). Byrd's counsel first asserts that the district court procedurally erred in sentencing Byrd to 240 months because the court viewed the guidelines range of 240 months as mandatory and therefore sentenced Byrd under de facto mandatory guidelines. Our review of the record convinces us that the district court understood the advisory nature of the sentencing guidelines. Next, counsel asserts that the district court failed to address adequately by failing the to 3553(a) take into factors, account among particularly the need to 3553(a)(6), prevent However, engaged factor. unwarranted at in a The the sentence 2008 with disparities sentencing co-defendants. the this and court very his August hearing, about Byrd colloquy court defense counsel that correctly found co-defendants were not similarly situated. Finally, Byrd argues that his sentence is procedurally unreasonable because the district 3 court failed to explain adequately why it sentenced Byrd to double the sentences received by his co-defendants. We review this claim for plain error because, after being given an opportunity to object to the sentence imposed by the district court, Byrd failed to challenge the adequacy of the court's explanation. To establish plain error, Byrd "must show: (1) an error was made; (2) the error is plain; and (3) the error affects substantial rights." States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. United 2009) (reviewing unpreserved Rule 11 error). the error lies within our "The decision to correct and we exercise that discretion, discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." 343 (internal quotation marks and citations omitted). We have carefully reviewed the sentencing transcript and find that the district court did not err--plainly or Id. at otherwise--in explaining its chosen sentence. sentence, the district court `must make "When rendering a an individualized assessment based on the facts presented.'" 328 (quoting Gall, 128 S. Ct. at 597). Carter, 564 F.3d at Thus, "`[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007)); see United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). 4 The district court did in fact discuss the relevant 3553(a) factors, rejecting Byrd's assertion that he should In receive a sentence similar to those of his co-defendants. addition, the court noted that Byrd was well spoken and had the family support to be successful once released from prison. court also acknowledged Byrd's post-sentencing The rehabilitative efforts but found that those efforts were not relevant to its sentencing decision but, instead, would be taken into account by the Bureau of Prisons in calculating Byrd's good-time credits. Although the district court did not mention specifically all of the 3553(a) factors, the court addressed the parties' arguments and provided the individualized assessment required by Carter. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED 5

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