US v. Tyree Slade
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
March 4, 2010
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
hundred § 846
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.").
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
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
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
recommendation to the
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
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
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
§ 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
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
decisional process. AFFIRMED
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