US v. Corey Beaty

Filing 920100528

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4790 UNITED STATES OF AMERICA, Plaintiff Appellee, v. COREY TERRELLE BEATY, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:08-cr-00105-HMH-1) Submitted: April 29, 2010 Decided: May 28, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Maxwell Cauthen, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g) (2006) and 18 U.S.C. 924(a)(2), (e) (2006), the district court sentenced On appeal, Corey Terrelle Beaty to 120 months' imprisonment. Beaty asserts his sentence is procedurally unreasonable because the district court failed to adequately explain the reasons for the sentence it imposed. We reject this contention and affirm the district court's judgment for the following reasons. We review Beaty's sentence for reasonableness under an abuse of discretion standard. 38, 51 (2007). both the Gall v. United States, 552 U.S. This review requires appellate consideration of and substantive reasonableness of a procedural Id. whether sentence. consider In determining procedural reasonableness, we the district court properly calculated the defendant's advisory Guidelines range, considered the 18 U.S.C. 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Id. Beaty did not preserve his objection to the sufficiency of the district court's explanation "[b]y drawing arguments from 3553 for a sentence different than the one ultimately imposed." (4th Cir. 2010). United States v. Lynn, 592 F.3d 572, 578 Accordingly, we will review Beaty's challenge 2 to the sufficiency of the court's explanation of his sentence for plain error. Id. at 576-77. To establish plain error, Beaty must demonstrate that (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). Applying the Supreme Court's directive in Gall, this court has opined that, "[r]egardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an individualized assessment based on the particular facts of the case before it." United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks Lynn. omitted). We recently reiterated this requirement in See Lynn, 592 F.3d at 576. Even if we the were to find imposed the in district this court's was explanation for sentence case inadequate, which we do not, see United States v. Hernandez, __ F.3d __, 2010 WL 1695606, at *3-*4 (4th Cir. 2010), we would nonetheless affirm the district court's judgment. Beaty's attorney did not rely on any of the 3553(a) sentencing factors to advocate for a sentence different than the 120-month sentence Beaty received, which was the lowest sentence available under the controlling advisory guideline. demonstrate that the district Accordingly, Beaty cannot court's "very brief 3 explanation . . . had imposed." a prejudicial effect on the sentence Lynn, 592 F.3d at 580. For these reasons, we affirm Beaty's sentence. * We legal dispense with oral argument because the facts and contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED Although not raised, we note that we afford Beaty's within-Guidelines sentence a presumption of substantive reasonableness. See United States v. Wright, 594 F.3d 259, 267 (4th Cir. 2010); see also Rita v. United States, 551 U.S. 338, 347 (2007) (upholding rebuttable presumption of reasonableness for within-Guidelines sentence). * 4

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