US v. Dantonio Carson

Filing 920100331

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4996

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DANTONIO RODREQUEZ CARSON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:09-cr-00422-HMH-1)

Submitted:

March 4, 2010

Decided:

March 31, 2010

Before MOTZ and Circuit Judge.

AGEE,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Leesa Washington, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Dantonio Rodrequez Carson pled guilty without a plea agreement to one count of possession of a firearm by a convicted felon, in violation court of 18 U.S.C. § 922(g)(1) (2006). The

district

calculated

Carson's

advisory

Guidelines

imprisonment range under the U.S. Sentencing Guidelines Manual (2008) at 51 to 63 months and sentenced Carson to 62 months' imprisonment. Counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that the appeal lacks merit failing but to questioning consider, whether for the district of court erred in

purposes

calculating

sentencing

credit, the time Carson spent in state custody from the date of his initial appearance in the district court. We affirm.

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. leads us Our review of the transcript of the guilty plea hearing to conclude that the district court substantially

complied with the mandates of Fed. R. Crim. P. 11 in accepting Carson's guilty plea and that Carson's substantial rights were not infringed. court Critically, ensured that and the the transcript plea was reveals that by the an plea the

district

supported entered

independent knowingly

factual and

basis

that an

Carson

the of

voluntarily

with

understanding

2

consequences.

See United States v. DeFusco, 949 F.2d 114, 116,

119-20 (4th Cir. 1991). Turning to Carson's sentence, we review it under a "deferential abuse-of-discretion standard." Gall v. United

States, 552 U.S. 38, 41 (2007). "must first ensure that the

In conducting this review, we district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence." Id. at 51. "When rendering a sentence, the

district court must make an individualized assessment based on the facts presented," applying the "relevant § 3553(a) factors to the specific circumstances of the case before it." United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation "state in marks open and emphasis the omitted). The reasons court must also its

court

particular

supporting

chosen sentence" and "set forth enough to satisfy" this court that it has basis "considered for the parties' [its] own arguments legal and has a

reasoned

exercising

decisionmaking

authority."

Id. (internal quotation marks omitted).

Once we have determined that the sentence is free of procedural error, we must 3 consider the substantive

reasonableness

of

the

sentence,

"tak[ing]

into

account

the

totality of the circumstances."

Gall, 552 U.S. at 51.

If the

sentence is within the appropriate Guidelines range, this court applies a presumption on appeal that the sentence is reasonable. See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). Here, advisory counsel the district range and court heard Carson. district correctly argument While court calculated from Anders did not the

Guidelines and

Carson's counsel err in

allocution that

from the

correctly

concedes

failing to consider the time Carson spent in state custody for purposes of calculating sentencing credit, see United States v. Wilson, 503 U.S. error 329, in 334-35 (1992), to the an court committed

procedural

failing

provide

individualized

assessment of Carson's case. court's omission did not

We conclude, however, that the Carson's substantial rights.

affect

See United States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005). Further, neither counsel nor Carson put forth any

factors to overcome the appellate presumption of reasonableness afforded his within-Guidelines sentence. We therefore affirm the district court's judgment.

This court requires that counsel inform Carson, in writing, of the right to petition the Supreme Court of the United States for further review. If Carson requests that a petition be filed,

but counsel believes that such a petition would be frivolous, 4

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 Carson. 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