US v. Reginald Anderson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00035-gmw-pms-3 Copies to all parties and the district court/agency. [998691445].. [09-4524]

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Document: 31

Date Filed: 10/03/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4524

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD SCOTT ANDERSON,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.
Glen M. Williams, Senior
District Judge. (1:08-cr-00035-gmw-pms-3)

Submitted:

October 29, 2010

Decided:

October 3, 2011

Before MOTZ, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Reginald
sentence

imposed

Scott

Anderson

following

his

appeals

guilty

from

the

to

one

plea

87-month
count

of

conspiracy to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006), and four counts of
possession with intent to distribute cocaine base, in violation
of

21

U.S.C.

§§ 841(a)(1),

841(b)(1)(c)

(2006).

Finding

no

error, we affirm.
This
applying

an

court

abuse

reviews

of

a

discretion

States, 552 U.S. 38, 51 (2007).
consideration

of

both

the

assess

determining

whether

the

for

reasonableness,
Gall

standard.

v.

United

This review requires appellate

procedural

reasonableness of a sentence.
In

sentence

and

the

substantive

Id.

procedural

district

reasonableness,

court

defendant’s advisory guidelines range.

properly

we

first

calculated

the

Id. at 49-51. We then

determine whether the district court considered the 18 U.S.C. §
3553(a)

(2006)

factors

and

any

arguments

presented

by

the

parties, treated the guidelines as advisory, selected a sentence
based on “clearly erroneous facts,” and sufficiently explained
the selected sentence.

Gall, 552 U.S. at 51; United States v.

Pauley,

473

511

F.3d

468,

(4th Cir. 2007).

We

then

review

whether the district court made “an individualized assessment
based on the facts presented.”

Gall, 552 U.S. at 50; see United
2

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States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (holding
that, while the “individualized assessment need not be elaborate
or lengthy, . . . it must provide a rationale tailored to the
particular case . . . and [be] adequate to permit meaningful
appellate review”) (internal quotation marks omitted).
Finally, we review the substantive reasonableness of
the

sentence,

“taking

into

account

the

‘totality

of

the

circumstances, including the extent of any variance from the
[g]uidelines range.’”
552 U.S. at 51).
properly

On appeal, we accord a sentence within the

calculated

reasonableness.

Pauley, 511 F.3d at 473 (quoting Gall,

guidelines

range

a

presumption

of

United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008).
The district court followed the necessary procedural
steps in sentencing Anderson, properly calculating, treating as
advisory, and considering the Guidelines range; performing an
individualized assessment of the relevant § 3553(a) factors; and
stating in open court the reasons for its sentence.

The court

acted within its discretion in considering Anderson’s request
for a reduced sentence in light of Kimbrough v. United States,
552 U.S. 85 (2007), as well as guidance from the Department of
Justice

regarding

the

Administration’s

crack/powder cocaine sentencing disparity.

position

on

the

Anderson’s sentence,

which is at the low end of the advisory Guidelines range, is
3

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presumed

on

Date Filed: 10/03/2011

appeal

to

be

rebutted this presumption.

Page: 4 of 4

reasonable,

and

Anderson

has

not

We conclude that the district court

did not abuse its discretion in sentencing Anderson.
On appeal, Anderson asks us to vacate the judgment and
remand the case so that he might be sentenced pursuant to the
terms

of the

Fair

Sentencing

Act

of

2010

(“FSA”).

As

we

recently held, however, the FSA does not apply retroactively.
See United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011)
(holding that the FSA did not apply retroactively to cases on
appeal), pet. for cert. filed, (Aug. 17, 2011) (No. 11-5912).
Accordingly, as Anderson was convicted and sentenced prior to
the effective date of the Act, he is not entitled to relief in
this case.
We
court.
legal
before

therefore

affirm

the

judgment

of

the

district

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

4