US v. Jesse Roberson

Filing 920091231

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4287

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSE DOUGLAS ROBERSON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:08-cr-00012-RLV-CH-1)

Submitted:

December 8, 2009

Decided:

December 31, 2009

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Ann L. Hester, Kevin Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jesse sentence Douglas Roberson his appeals guilty from plea, the sixty-month to a

imposed

following

pursuant

written plea agreement, to one count of conspiracy with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(b)(1)(A), (C), 846 (2006).

Roberson's counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning whether Roberson's sentence was procedurally and

substantively reasonable.

Roberson was advised of his right to Finding no reversible

file a pro se brief, but has not done so. error, we affirm.

Consistent with United States v. Booker, 543 U.S. 220 (2005), the district court is required to follow a multi-step process at sentencing. First, it must calculate the proper

sentencing range prescribed by the Guidelines.

Gall v. United

States, 552 U.S. 38, 49 (2007); see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). It must then consider that range in light of the

parties' arguments regarding the appropriate sentence and the factors set out in 18 U.S.C. § 3553(a) (2006), before imposing its sentence. F.3d at 260. Gall, 552 U.S. at 49-50; see also Abu Ali, 528

2

We review the district court's sentence for abuse of discretion. district error," Gall, 552 U.S. at 41. did not commit to First, we must ensure the "significant calculate procedural advisory

court such as

any

failing

properly

the

Guidelines sentence, consider the 18 U.S.C. § 3553(a) factors, or adequately explain the sentence. Id. at 51. Once we have

determined there is no procedural error, we must consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Id. If the sentence imposed

is within the appropriate Guidelines range, we consider it on appeal to be presumptively reasonable. F.3d 216, 218 (4th Cir. 2008). United States v. Go, 517

The presumption may be rebutted

by a showing "that the sentence is unreasonable when measured against the § 3553(a) factors." United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and citation omitted). Our review of the record reveals that the district court range, properly taking calculated into account Roberson's the applicable statutory Guidelines mandatory

five-year

minimum sentence.

Critically, because the Government did not

move for a downward departure to reflect substantial assistance, the district court had 18 no authority to depart below the

mandatory

minimum.

U.S.C.

§ 3553(e);

Melendez v.

United

States, 518 U.S. 120, 125-26 (1996). 3

Furthermore, Roberson's

within-Guidelines sentence is presumptively reasonable on appeal and Roberson has not rebutted that presumption. Therefore, we

find that the district court committed no reversible error in sentencing Roberson to sixty months' imprisonment. In accordance with Anders, we have reviewed the 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 Roberson, in writing, of his right to petition the Supreme Court of the United States for further review. counsel counsel If Roberson requests that a petition be filed, but believes may move that in such this a court petition for would to be frivolous, from

leave

withdraw

representation.

Counsel's motion must state that a copy thereof We dispense with oral argument because

was served on Roberson.

the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the

decisional process. AFFIRMED

4