US v. Keneniski Glanton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00729-MBS-2 Copies to all parties and the district court/agency. [998503259] [10-4516]

Case: 10-4516

Document: 28

Date Filed: 01/14/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4516

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENENISKI JERALD GLANTON, a/k/a Jerald, a/k/a Gerald,
Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:08-cr-00729-MBS-2)

Submitted:

December 23, 2010

Decided:

January 14, 2011

Before WILKINSON, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant.
Stanley Duane Ragsdale, John David
Rowell, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4516

Document: 28

Date Filed: 01/14/2011

Page: 2

PER CURIAM:
Keneniski
sentence

imposed

conspiracy

to

Jerald

following

possess

Glanton
his

with

appeals

guilty

plea

intent

to

the
to

200-month

one

count

of

and

to

distribute

distribute fifty grams or more of cocaine base, in violation of
21

U.S.C.A

§§

841(b)(1)(A),

846

(West

1999

&

Supp.

2010).

Counsel for Glanton filed a brief in this court in accordance
with Anders v. California, 386 U.S. 738 (1967), certifying that
there are no non-frivolous issues for appeal, but questioning
whether

the

district

court

imposed

an

unreasonable

sentence.

Glanton has filed a pro se supplemental brief, arguing that he
should be resentenced under the Fair Sentencing Act of 2010,
Pub.

L.

No.

unreasonable

111-220,
and

Stat.

2372,

that

his

and

that

counsel

unconstitutional,

ineffective assistance.
Counsel

124

sentence

is

rendered

We affirm.

challenges

specify any deficiencies.

Glanton’s

sentence,

but

does

not

We review a sentence imposed by a

district court under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Lynn,

592

reviewing

F.3d
the

572,

575-76

sentence

for

(4th

Cir.

significant

2010).

We

begin

procedural

by

error,

including such errors as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory,

failing

to

consider
2

the

[18

U.S.C.]

§

3553(a)

Case: 10-4516

[(2006)]

Document: 28

factors,

Date Filed: 01/14/2011

selecting

a

sentence

Page: 3

based

on

clearly

erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines

range.”

procedural

Gall,

errors,

552

we

U.S.

then

at

51.

consider

If

there

the

are

no

substantive

reasonableness of the sentence, taking into account the totality
of

the

circumstances.

United

States

v.

Mendoza-Mendoza,

597 F.3d 212, 216 (4th Cir. 2010).
“When rendering a sentence, the district court ‘must
make

an

individualized

assessment

based

on

the

facts

presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50) (emphasis omitted).
Accordingly,

a

sentencing

court

must

apply

the

relevant

§ 3553(a) factors to the particular facts presented and must
“‘state in open court’” the particular reasons that support its
chosen sentence.
& Supp. 2010)).

Id.

(quoting 18 U.S.C.A. § 3553(c) (West 2000

The court’s explanation need not be exhaustive;

it must be “sufficient ‘to satisfy the appellate court that the
district court has considered the parties’ arguments and has a
reasoned

basis

authority.’”

for

exercising

its

own

legal

decisionmaking

United States v. Boulware, 604 F.3d 832, 837 (4th

Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)) (alterations omitted).

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Case: 10-4516

Document: 28

Date Filed: 01/14/2011

Page: 4

We conclude that the sentence imposed by the district
court was both procedurally and substantively reasonable. The
district court calculated the Guidelines range and understood
that it was advisory.

Furthermore, it is apparent that the

court considered the arguments of the parties and had a reasoned
basis

for

its

decision.

The

court

made

an

statement explaining the sentence imposed.

individualized

Thus, the district

court did not commit procedural error during sentencing.
Glanton’s sentence is also substantively reasonable.
In reviewing a sentence outside the Guidelines range, we “‘give
due

deference

§ 3553(a)

to

the

factors,

variance.’”

on

district
a

court’s
justify

whole,

decision
the

that

extent

of

the
the

United States v. Morace, 594 F.3d 340 (4th Cir.)

(quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307
(2010).

Here,

supported

by

the

the

district

court’s

Government’s

motion

variant
to

sentence

depart

from

is
the

Guidelines under 18 U.S.C. § 3553(e) (2006) and U.S. Sentencing
Guidelines Manual § 5K1.1 (2008).
imposed

a

reasonable

sentence

We conclude that the court

under

the

circumstances.

We

reject the claims raised in Glanton’s pro se supplemental brief
as meritless. *

*

The Fair Sentencing Act, which increased the amounts of
crack cocaine that trigger statutory mandatory minimum sentences
in 21 U.S.C. § 841(b) (West 1999 & Supp. 2010), is not
(Continued)
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Page: 5

In accordance with Anders, we have examined the entire
record

and

therefore

find

no

affirm

other

the

meritorious

district

issues

court’s

for

judgment.

appeal.
This

We

court

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

If

Glanton

requests

that

a

petition

be

filed,

but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Glanton.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

the

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

retroactive and is therefore inapplicable to Glanton’s sentence.
See United States v. Diaz, ___ F.3d ___, 2010 WL 5094222, at *1
(2d Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7
(8th Cir. 2010); United States v. Bell, 624 F.3d 803, 814 (7th
Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th
Cir. 2010); United States v. Carradine, 621 F.3d 575, 580 (6th
Cir. 2010).
Further, ineffective assistance of counsel claims are not
cognizable on direct appeal unless it conclusively appears on
the record that defense counsel was ineffective. United States
v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Because the
record here does not conclusively demonstrate that Glanton’s
counsel provided ineffective assistance, Glanton must pursue
this claim, should he wish to do so, in an appropriate
proceeding for post-conviction relief.

5