US v. Damian Polk

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00221-TDS-1 Copies to all parties and the district court/agency. [998477618] [10-4202]

US v. Damian Polk

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMIAN AURELIUS POLK, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08-cr-00221-TDS-1) Submitted: November 30, 2010 Decided: December 3, 2010

Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher A. Beechler, Winston-Salem, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Damian Aurelius Polk pled guilty, pursuant to a

written plea agreement, to conspiracy to distribute fifty grams or more of a mixture and substance containing a detectable

amount of cocaine base, in violation of 21 U.S.C. § 846 (2006). The district court determined that Polk satisfied the

requirements for application of the safety valve and sentenced Polk below the statutory mandatory minimum to ninety-two months' imprisonment. Counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal but questions the

reasonableness of Polk's sentence.

Polk was notified of his

right to file a pro se supplemental brief, but he has not done so. Finding no error, we affirm. Appellate review of a sentence, "whether inside, just outside, or significantly outside the Guidelines range," is for abuse of discretion. (2007). This review Gall v. United States, 552 U.S. 38, 41 requires consideration of both the

procedural and substantive reasonableness of a sentence. 51.

Id. at

This court must assess whether the district court properly the advisory (2006) parties, Guidelines factors, and range, considered any the 18

calculated U.S.C.

§ 3553(a) by the

analyzed

arguments the

presented

sufficiently

explained

selected sentence.

Id. at 49-50; see also United States v. 2

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Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ("[A]n individualized explanation must accompany every sentence."); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). We may presume a

sentence imposed within the properly calculated Guidelines range is reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212,

217 (4th Cir. 2010). We have reviewed the record with these standards in mind. is Our examination leads us to conclude that Polk's sentence and did substantively abuse its sound. discretion Therefore, in imposing the the

procedurally court

district

not

chosen sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court

requires that counsel inform Polk, in writing, of the right to petition review. the Supreme Court of the United States for further

If Polk 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 We dispense with oral argument because the are adequately presented in the

was served on Polk. facts and legal

contentions

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materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

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