US v. John Saunders


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to extend filing time [998451018-2] Originating case number: 3:09-cr-00041-HEH-2 Copies to all parties and the district court/agency. [998462301] [09-4736]

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US v. John Saunders Doc. 0 Case: 09-4736 Document: 39 Date Filed: 11/09/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4736 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN SAUNDERS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:09-cr-00041-HEH-2) Submitted: September 30, 2010 Decided: November 9, 2010 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. David P. Morgan, Richmond, Virginia, for Appellant. Michael Arlen Jagels, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-4736 Document: 39 Date Filed: 11/09/2010 Page: 2 PER CURIAM: John distribution of Saunders heroin, pled and was guilty to two to a counts term of of 45 sentenced months' incarceration. Saunders appealed, and counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that in his view there are no meritorious grounds for appeal, but questioning whether Saunders' sentence was reasonable. Saunders was informed of his right to file a pro se We affirm. supplemental brief but has not done so. We review Saunders' sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural errors. United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008). calculate Significant procedural errors include "`failing to improperly calculating) the Guidelines range, (or . . . failing to consider the [18 U.S.C.] 3553(a) factors, . . . or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.'" United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51). We then consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. When reviewing a sentence on appeal, we presume a sentence within the 2 Case: 09-4736 Document: 39 Date Filed: 11/09/2010 Page: 3 properly-calculated Guideline range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Here, the district court departed upward in calculating the applicable Guideline range, on the ground that Saunders' seriousness criminal of his history criminal category history. under-represented USSG 4A1.3(a). the When reviewing a departure, we consider "whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range." United States v. Under Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). USSG 4A1.3(a)(1), "[i]f reliable information indicates that the defendant's criminal the history of category the substantially criminal under-represents seriousness defendant's history or the likelihood that the defendant will commit other crimes, an upward departure may be warranted." We have reviewed the record and conclude that the district court's decision to depart upward was procedurally and substantively reasonable. a criminal history The record reveals that Saunders had of VI, which did not take into category account approximately 26 of his prior convictions. Saunders' most recent offenses were committed only four months after he served a two-year term for violating probation. The court noted that Saunders' criminal activity over the years was virtually 3 Case: 09-4736 Document: 39 Date Filed: 11/09/2010 Page: 4 unabated, that there was a strong likelihood that it would continue upon his release, and that prior shorter terms had not effectively properly deterred his that criminal an conduct. departure Thus from the court concluded upward criminal history category VI was warranted, and proceeded to employ the proper methodology for recalculating Saunders' advisory range to 41 to 51 months. In reasonable. Saunders offenses criminal months only See USSG 4A1.3(a)(4)(B). the extent of the departure was addition, As we have noted, the two-year term completed by a few was The months before he to committed deter him range the from of 9 instant further to of 15 his clearly acts. was insufficient Guidelines to sentencing the insufficient reflect seriousness criminal history, or the likelihood that he would commit future crimes. We therefore conclude that the extent of the district Further, the district court and relevant 3553(a) court's departure was reasonable. considered the parties' arguments factors, including Saunders' history and characteristics and the need for the sentence to protect the public, and reasonably imposed a sentence in the middle of the recalculated advisory range. We accordingly conclude that Saunders' sentence is both procedurally and substantively reasonable. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for 4 Case: 09-4736 Document: 39 Date Filed: 11/09/2010 Page: 5 appeal. We therefore affirm the district court's judgment. This court requires that counsel inform Saunders in writing of his right to petition the Supreme Court of the United States for further review. If Saunders 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. was served for on an Counsel's motion must state that a copy thereof Saunders. extension of Finally, time in we deny Saunders' file a second pro se motion which to supplemental brief and dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials would decisional process. AFFIRMED 5

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