US v. Benjamin Keziah

Filing 920091109

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4261

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN LEE KEZIAH, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:08-cr-00058-MR-1)

Submitted:

October 29, 2009

Decided:

November 9, 2009

Before WILKINSON and Senior Circuit Judge.

GREGORY,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Joseph L. Ledford, JOSEPH L. LEDFORD, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Benjamin Keziah pleaded guilty to possession of child pornography, in violation of 18 U.S.C.A. § 2252(a)(4)(B) (West 2009), and two counts of receiving child pornography, in

violation of 18 U.S.C.A. § 2252(a)(2) (West 2009).

The district

court sentenced Keziah to 151 months of imprisonment and he now appeals. Finding no error, we affirm. Keziah argues that the district court's sentence is procedurally sentence standard. for and substantively unreasonable. an abuse We of review a

reasonableness,

applying

discretion

Gall v. United States, 552 U.S. 38, ___, 128 S. Ct.

586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No. 09-5584). for "significant (or In so doing, we first examine the sentence error," including the "failing to

procedural

calculate

improperly

calculating)

[g]uidelines

range,

treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] on § 3553(a) [(2006)] factors, or selecting failing to a sentence

based

clearly

erroneous

facts,

adequately

explain the chosen sentence . . . ."

Gall, 128 S. Ct. at 597.

This court then "`consider[s] the substantive reasonableness of the sentence imposed.'" United States v. Evans, 526 F.3d 155,

161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). "Substantive 2 reasonableness review

entails taking into account the `totality of the circumstances, including range.'" the extent of any variance from the [g]uidelines

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. If the sentence is a presumption of

2007) (quoting Gall, 128 S. Ct. at 597). within the guidelines range, we apply

reasonableness.

United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for

within-guidelines sentence). We have thoroughly reviewed the record and find that the sentence is both procedurally and substantively reasonable. The district court properly calculated the advisory guidelines range, considered the 18 U.S.C. § 3553(a) factors, and provided an adequate explanation of its chosen sentence. See United In of

States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). addition, substantive sentence. Keziah has failed we to rebut to the his presumption

reasonableness

accord

within-guidelines

We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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