US v. Horatio Everhart

Filing 920100326

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4409 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HORATIO EVERHART, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00186-NCT-2) Submitted: March 5, 2010 Decided: March 26, 2010 Before SHEDD, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Eugene E. Lester, III, SHARPLESS North Carolina, for Appellant. Assistant United States Attorney, for Appellee. STAVOLA, PA, Greensboro, Terry Michael Meinecke, Greensboro, North Carolina, & Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Horatio Everhart pled guilty pursuant to a plea agreement to conspiracy to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. 846 (2006). the quantity of drugs involved, Everhart was subject Due to to a ten-year mandatory minimum sentence; however, because Everhart qualified for the safety valve provision in 18 U.S.C. 3553(f)(1)-(5) (2006), the district court sentenced Everhart to 108 months' imprisonment, which fell within Everhart's advisory guidelines range. and on appeal, he has Everhart timely noted his appeal, a brief pursuant to Anders v. filed California, 386 U.S. 738 (1967). In his Anders brief, Finding no error, we affirm. Everhart suggests that his sentence was substantively unreasonable. According to Everhart, district courts, when sentencing crack cocaine offenders, should calculate an alternative guidelines range that eliminates the sentencing disparity between crack cocaine offenses and offenses involving courts, an equivalent amount could of powder cocaine. an District individual Everhart argues, then enhance defendant's sentence based on the factors in 18 U.S.C. 3553(a) Although Everhart was informed of his right to file a pro se supplemental brief, he has not done so. 2 (2006) and the particular circumstances surrounding the defendant's conduct. This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). appellate court must "first In reviewing a sentence, the that the district court ensure committed no significant procedural error," such as improperly calculating the guidelines range, failing to consider the 3553(a) factors, or failing to adequately explain the chosen sentence. errors, Gall, 552 U.S. at 51. the appellate court then Id. If there are no procedural considers the substantive reasonableness of the sentence. "When rendering a sentence, the district court must make an individualized assessment based on the facts presented" and "state in open court the particular reasons supporting its chosen sentence." (4th Cir. 2009) This United States v. Carter, 564 F.3d 325, 328 (internal requires quotation district marks court and to citations provide a omitted). the sufficient explanation of the sentence to satisfy this court that the district court has a reasoned basis for its decision and has considered the parties' arguments. Id. When reviewing a sentence on appeal, this court presumes a sentence within the 3 properly calculated guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). In his brief, Everhart relies on Spears v. United States, 129 S. Ct. 840 (2009). Spears, though, does not dictate a particular ratio district courts must adopt in calculating a defendant's advisory guidelines range. Spears merely recognizes a district Id. at 844. court's Rather, to authority substitute its own crack cocaine-to-powder cocaine ratio if it determines that the disparity embodied in the Guidelines is unwarranted. The district court here, in the exercise of its discretion, explicitly rejected the argument that the disparity was unwarranted. We find no abuse of discretion in the district court's determination of Everhart's sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Everhart's conviction and sentence. This court requires that counsel inform Everhart, in writing, of the right to petition the Supreme Court of the United States for further review. If Everhart 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 was served on Everhart. 4 We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in the the materials decisional would aid process. AFFIRMED 5

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