US v. Tyree Slade

Filing 920100325

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4265 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TYREE LAMAR SLADE, a/k/a Ovious Mcfly, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00024-jpj-pms-5) Submitted: March 4, 2010 Decided: March 25, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James Gordon Hunter, III, O'KEEFFE & SPIES, Lynchburg, Virginia, for Appellant. Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tyree conspiracy cocaine to Lamar possess and 21 five Slade and pled guilty fifty or to one or count more of of in distribute grams grams of base of hundred 846 more The cocaine, violation U.S.C. (2006). district court sentenced Slade to 300 months in prison. On appeal, Slade's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he believed there were no meritorious issues for appeal. two issues in the However, at Slade's request, counsel raised brief: (1) whether Slade's sentence was greater than necessary to comply with the purposes set forth in 18 U.S.C. 3553(a) (2006), and (2) whether the district court erred "in deviating from the guideline computation and/or criminal history category, including but not limited to the plea agreement" in this case. Slade has not filed a supplemental pro se brief, nor has the Government filed a response to the Anders brief. * Finding no error, we affirm. Slade consented to waive all of his rights to appeal his sentence and "any and all issues in this matter," and agreed that he would not file a notice of appeal. However, because the Government has not filed a Motion to Dismiss or otherwise asserted this waiver, this court may undertake a review pursuant to Anders v. California, 386 U.S. 738 (1967). See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) ("If an Anders brief is filed, the government is free to file a responsive brief raising the waiver issue (if applicable) or do nothing, allowing this court to perform the required Anders review."). * 2 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 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--including an explanation for any deviation from the Guidelines range." Id. Here, Slade argues that the district court erred by determining that his base offense level was thirty-eight, as calculated in the presentence report ("PSR"), and not thirtyseven as determined in the plea agreement. that his plea agreement specifically noted Slade is correct that the career offender Guidelines section, which would have put Slade's base offense conduct. level at thirty-seven, it also was applicable expressly to that Slade's "other However, stated guideline sections may be applicable" to Slade's case, and that both he and the Government were "free to argue whether these sections should or should not apply; to the extent the arguments are not inconsistent with the stipulations, recommendations and terms set forth in this a plea agreement." that Additionally, that the the agreement contained provision 3 recognized district court and was may "not bound by any up recommendation to the or stipulation maximum." sentence [Slade] statutory Slade's counsel never argued that U.S. Sentencing Guidelines Manual 2D1.1(c)(1) (2008) was incorrectly applied to Slade based court on to the relevant facts, to but rather asked the sentencing "give credit" the base offense level noted in the plea agreement because the resulting sentence would still be subject to a twenty-year statutory minimum. Because the PSR determined that Slade was "criminally involved" with more than 4.5 kilograms of cocaine base, the application of 2D1.1(c)(1) to determine Slade's base offense level was not in error. The court also allowed the parties to present arguments as to what they believed was an appropriate sentence, Slade was given the opportunity to testify, and the court considered the 3553(a) factors and documented an explanation for imposing the final sentence. Thus, the district court did not commit procedural error in sentencing Slade. Slade also challenges the substantive reasonableness of his sentence, questioning whether the sentence was greater than necessary to comply with the the purposes sentence set was forth within in the 18 U.S.C. 3553(a). However, properly calculated Guidelines range, and we presume on appeal that the sentence is substantively reasonable. See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). 4 Moreover, as noted, the sentencing court considered the factors in 3553(a) and explained that the sentence was intended to serve as a deterrent, to provide punishment for the offense, and to promote respect for the law by having Slade take responsibility for his actions. As a result, Slade's sentence is not substantively unreasonable. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. part of We therefore affirm Slade's conviction and dismiss that the appeal relating to his sentencing. This court requires that counsel inform Slade, in writing, of the right to petition review. the Supreme Court of the United States for further If Slade requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof We dispense with oral argument because the are and adequately argument presented not in aid the the was served on Slade. facts and legal before contentions the court materials would decisional process. AFFIRMED 5

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