US v. David Hulse-Ebanks

Filing 920091026

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4087 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ALEJANDRO HULSE-EBANKS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:08-cr-00140-RBS-FBS-1) Submitted: September 24, 2009 Decided: October 26, 2009

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Richard J. Colgan, Assistant Federal Public Defender, Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Randy Stoker, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Hulse-Ebanks pled guilty to unlawful reentry by a previously deported felon, 8 U.S.C. § 1326(a), (b)(2) (2006), and was sentenced to seventy-two We affirm. months in prison. He now

appeals his sentence.

I Hulse-Ebanks first contends that he was denied his

right of allocution, Fed. R. Crim. P. 32(i)(4)(A)(ii), because the district court pronounced sentence prior to affording him the opportunity to address the court. We disagree.

At sentencing, the court first found that the advisory Guidelines range had been correctly calculated. addressed in detail the 18 U.S.C. Next, the court sentencing

§ 3553(a)(2006)

factors and their application to this case.

Finally, the court

concluded that a sentence of seventy-two months was "sufficient but not greater than necessary to comply with the purposes of" § 3553. The court then stated, "Before the court finalizes any

sentence that it imposes, the defendant . . . may . . . make any statement to the court that he wishes to make." addressed the court. two months in prison. Hulse-Ebanks

The court then sentenced him to seventyIn pronouncing sentence, the court stated

that it had considered his statement.

2

We conclude that Hulse-Ebanks was not denied his right of allocution. Rather, while the district court announced a

tentative sentence, it did not impose that sentence until after hearing Hulse-Ebanks' allocution. Rule 32(i)(4)(A)(ii). See There was no violation of

United States v. Boose, 403 F.3d

1016, 1017 (8th Cir. 2005); United States v. Lopez-Lopez, 295 F.3d 165, 171 (1st Cir. 2002); United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997).

II Hulse-Ebanks contends that his sentence is

unreasonable because it is longer than necessary to achieve the statutory goals of sentencing set forth in 18 U.S.C. § 3553(a). We review a sentence for reasonableness, applying an abuse-ofdiscretion standard. Ct. 586, 597 (2007). the sentence for Gall v. United States, 552 U.S. 38, 128 S. In conducting our review, we first examine "significant procedural error," including

"failing to calculate (or improperly calculating) the 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." Id. The district court must provide an

"individualized assessment" based upon the specific facts before it. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) 3

(emphasis

omitted).

We

next

"consider Id.

the

substantive

reasonableness of the sentence imposed."

At this stage, we Gall,

"take into account the totality of the circumstances." 128 S. Ct. at 597. Here, procedural calculating the district in court followed the

necessary correctly an they

steps the

sentencing Guidelines of the

Hulse-Ebanks, range,

advisory

performing factors as

individualized

assessment

§ 3553(a)

applied to the facts of the case, and stating in open court the reasons for the sentence. We may presume that the sentence,

which falls within the advisory Guidelines range, is reasonable. See United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Hulse-Ebanks presumption. offers no persuasive argument to rebut this

We conclude that the sentence is procedurally and

substantively reasonable and that the district court did not abuse its discretion in sentencing him to seventy-two months in prison.

III We accordingly affirm. 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 4