US v. Benjamin Keziah

Filing 920091109

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4261 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN LEE KEZIAH, Defendant -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 GREGORY, Circuit Judges, and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 3

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