US v. Horatio Everhart

Filing 920100326

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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