US v. Travis Starks

Filing 920100326

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4162

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. TRAVIS STARKS, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:08-cr-00467-HFF-3)

Submitted:

March 9, 2010

Decided:

March 26, 2010

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Everett P. Godfrey, Jr., GODFREY LAW FIRM, Greenville, South Carolina, for Appellant. Robert Frank Daley, Jr., Assistant United States Attorney, Columbia, South Carolina, Regan Alexandra Pendleton, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Travis Starks appeals from a 188-month sentence

imposed following a guilty plea to conspiracy to possess with intent to distribute and to distribute 500 grams or more of cocaine, 50 grams or more of cocaine base, and 100 grams or more of heroin in violation of 21 U.S.C. § 846 (2006). Starks's

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he believes there are no meritorious issues for appeal, but questioning the reasonableness of

Starks's sentence.

Starks was advised of his right to file a The Government has not filed

pro se brief, but has not done so. a brief.

Finding no reversible error, we affirm. When a sentence is challenged on appeal, this court

reviews

the

sentence using an

for

both of

procedural discretion 38, 51

and

substantive See

reasonableness Gall v. United

abuse 552

standard.

States,

U.S.

(2007).

Procedural

errors include failing to consider the factors articulated in 18 U.S.C. § 3553(a) (2006), treating the U.S. Sentencing

Guidelines Manual (2008) as mandatory, or "failing to adequately explain the chosen sentence." Id. Although not raised by

Starks's counsel in the Anders brief, a review of the record revealed Starks's an issue regarding the procedural whether reasonableness district of

sentence,

specifically,

the

court

2

erred in failing to provide an individualized rationale when sentencing Starks. In evaluating the sentencing court's explanation of a selected sentence, this court has held consistently that, while a district court must consider the sentencing factors in 18

U.S.C. § 3553(a) (2006) and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated guidelines range. 445 F.3d 339, 345 (4th Cir. 2006). United States v. Johnson, At the same time, however,

the district court "must make an individualized assessment based on the facts presented." United States, 551 U.S. Gall, 552 U.S. at 50; see also Rita v. 338, 356-57 (2007). The reasons

articulated by the district court for a given sentence need not be "couched in the precise language of § 3553(a)," so long as the "reasons can . . be . matched and [are] to a factor tied appropriate to for

consideration

clearly

[defendant's]

particular situation." 658 (4th Cir. 2007). States v. Carter,

United States v. Moulden, 478 F.3d 652, As this court recently explained in United

564

F.3d

325

(4th

Cir.

2009),

while not

the be

"individualized

assessment

[of

each

defendant]

need

elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and [be] adequate to permit

meaningful appellate review."

Id. at 330 (internal quotation 3

marks omitted).

Thus, a conclusory statement that a specific

sentence is the proper one does not satisfy the district court's responsibilities. Id. at 328-29. In addition, this court

cannot presume that the district court adopted the arguments of one of the parties while imposing sentence; an appellate court may not guess at the district court's rationale. Id. at 329-30.

Starks failed to preserve for appeal the adequacy of the district court's explanation for imposition of his sentence. Therefore, this court reviews his sentence for plain error. See

United States v. Branch, 537 F.3d 328, 343 (4th Cir. 2008); Fed. R. Crim. P. 52(b). plain error was Accordingly, Starks must demonstrate that and that the error affected his

committed,

substantial rights.

Fed. R. Crim. P. 52(b).

Here, the record demonstrates that at sentencing, the district court failed to provide an individualized rationale for Starks's sentence as required by our holding in Carter. district following court merely stated of that the sentence and was the The

entered relevant

consideration

the

Guidelines

§ 3553(a) factors, but did not further explicate the nature or extent of that consideration, or how the sentencing factors

specifically related to Starks's case.

Moreover, the court did

not address the issues raised by Starks or his counsel at the hearing regarding Starks's drug use or his minor role in the offense, or provide any other reason for choosing the sentence 4

imposed.

Accordingly,

we

find

that

the

district

court's

explanation constituted error, and that the error was plain. Nonetheless, the record does not support a finding Starks's

that this error affected Starks's substantial rights.

Guidelines range, which was properly calculated, was 188 to 235 months. Both Starks and his counsel requested only the district

court's "mercy," and did not seek any specific sentence within or below the Guidelines range. The district court sentenced

Starks to 188 months, the lowest sentence within the Guidelines range. Thus, the district court's explanation did not have a effect on the was sentenced within imposed. the Additionally, calculated that States the v.

prejudicial because the

sentence this

properly on See appeal United

Guidelines sentence is

range,

court

presumes

substantively

reasonable.

Allen, 491 F.3d 178, 193 (4th Cir. 2007). argument to rebut this presumption.

Starks has offered no

In accordance with Anders, we have reviewed the entire 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 his client, in writing, of his right to petition the Supreme Court of the United States for further but review. counsel If Starks requests such a that a petition would be be

filed,

believes

that

petition

frivolous, then counsel may move in this court for leave to 5

withdraw from representation.

Counsel's motion must state that We dispense with oral

a copy thereof was served on Starks.

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

6