US v. Damian Polk

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UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. Damian Polk Doc. 0 Case: 10-4202 Document: 26 Date Filed: 12/03/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMIAN AURELIUS POLK, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Case: 10-4202 Document: 26 Date Filed: 12/03/2010 Page: 2 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 Case: 10-4202 Document: 26 Date Filed: 12/03/2010 Page: 3 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 3 Case: 10-4202 Document: 26 Date Filed: 12/03/2010 Page: 4 materials before the court and argument would not aid the decisional process. AFFIRMED 4

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