US v. Brian Bobo

Filing 920100618

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4386

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRIAN O. BOBO, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior District Judge. (6:08-cr-01012-GRA-1)

Submitted:

May 17, 2010

Decided:

June 18, 2010

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Benjamin T. Stepp, Assistant Greenville, South Carolina, for Lucius, Assistant United States Carolina, for Appellee.

Federal Public Defender, Appellant. William Corley Attorney, Greenville, South

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Brian months' O. Bobo and appeals three the sentence of of thirty-seven release

imprisonment

years

supervised

imposed following his guilty plea to conspiracy to defraud the United States, in violation has U.S. erred filed 738 in a of 18 U.S.C. pursuant § 286 to (2006). v. the of

Appellate

counsel 386

brief

Anders

California, district

(1967),

questioning Bobo to

whether years

court

sentencing

three

supervised release, but concluding that there are no meritorious grounds for appeal. brief and the Bobo did not file a pro se supplemental elected not to file a brief. We

Government

previously placed this case in abeyance pending the outcome of United States v. Peake, No. 08-5132. As our mandate has now

issued in Peake, this case has been removed from abeyance, and is ripe for review. "Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard." United States, 552 U.S. 38, 51 (2007). charged with reviewing sentences Id. procedural court reasonableness, properly we first the for Gall v.

Appellate courts are both procedural and

substantive reasonableness. In assess determining the

whether

district

calculated

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defendant's advisory guidelines range.

Gall, 552 U.S. at 49-50.

We then determine whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments

presented by the parties, treated the guidelines as mandatory, selected a sentence based on "clearly erroneous facts," or

failed to sufficiently explain the selected sentence.

Id. at

51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally, sentence, we review the into substantive account reasonableness `totality of of the the

"taking

the

circumstances, including the extent of any variance from the Guidelines range.'" U.S. at 51). We calculated afford sentences range a that fall within of the properly Pauley, 511 F.3d at 473 (quoting Gall, 552

guidelines

presumption

reasonableness.

See Gall, 552 U.S. at 51. by showing "that the

This presumption can be rebutted only is unreasonable when measured

sentence

against the § 3553(a) factors."

United States v. Montes-Pineda,

445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and citation omitted). Though Bobo's counsel assigns error to the district court's imposition of three years of supervised release, we note that Bobo's entire sentence is procedurally unreasonable, as the district court failed to adequately explain it. We recently

3

held, in United States v. Carter, 564 F.3d 325 (4th Cir. 2009), that a district court must conduct an "individualized

assessment" of the particular facts of every sentence on the record, whether the court imposes a sentence above, below, or within the guidelines range. Id. at 330. Here, the district

court summarized its reasons for Bobo's sentence as follows: After having considered the Sentencing Reform Act of 1984, and the advisory nature of the sentencing guidelines, and the discretionary nature of the sentencing factors in 18 U.S.C. § 3553(a), it is the sentence of this court that you, Brian O. Bobo, are hereby committed to the custody of the Bureau of Prisons for a term of 37 months. The district court failed to provide any reasons why a

guidelines sentence was appropriate for Bobo or why it chose to sentence him at the low end of the advisory guideline range. Therefore, it is clear that the district court failed to provide an individualized assessment as required by Carter. However, Bobo did not object to the adequacy of the district court's explanation in the district court. defendant does not object to a district court's Where a to

failure

explain an imposed sentence, or otherwise preserve the issue for review by requesting a sentence shorter than the one he

received, this court's review is for plain error.

See United Under

States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010). plain error review,

4

an appellate court may correct an error not brought to the attention of the trial court if (1) there is an error (2) that is plain and (3) that affects substantial rights. If all three of these conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)

(internal quotation marks, citations, and alterations omitted). In the sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed "was longer than that v. to which he would 404 otherwise 834, be 849 subject." (4th Cir. United 2005)

States

Washington,

F.3d

(internal quotation marks and citation omitted). The district court sentenced Bobo before we issued Even if

Carter, and thus without the benefit of that opinion.

we were to deem the district court's error plain, however, it did not affect Bobo's substantial rights. Bobo's attorney

requested a prison sentence of thirty-seven months, which fell at the bottom of the guideline range. The district court

acquiesced, and imposed a period of incarceration of thirtyseven months. Accordingly, because Bobo cannot show that the

district court's failure to provide an individualized assessment on the record resulted in a longer sentence than would otherwise

5

have

been

imposed,

the error

did

not

affect

his

substantial

rights, and is therefore not cognizable on appeal. Bobo's attorney's substantive claim, that the district court erred in sentencing him to three years of supervised

release, is equally unavailing.

As Bobo's offense of conviction

was a Class C felony, see 18 U.S.C. § 3581(b)(3) (2006), the guidelines recommend a term of supervised release of at least two but not more than three years. Guidelines Manual § 5D1.2(a)(2). United States Sentencing Bobo's sentence of

Because

three years of supervised release following his active prison term fell within that range, we afford it a presumption of

reasonableness.

As Bobo is unable to show that the sentence is

unreasonable when measured against the § 3553(a) factors, this claim is without merit. We have reviewed the entire record in accordance with Anders appeal. court. and have not identified any meritorious issues for

Accordingly, we affirm the judgment of the district This court requires counsel to inform Bobo, in writing,

of his right to petition the Supreme Court of the United States for further review. If the client requests such petition be

filed, but counsel believes that doing so would be frivolous, counsel may move this court to withdraw from representation. Counsel's motion must state that a copy of the motion was served

6

on the client.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional

process. AFFIRMED

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