US v. Sharita Pankey

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00240-2 Copies to all parties and the district court/agency. [998536656] [10-4854, 10-4855]

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US v. Sharita Pankey Doc. 0 Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4854 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHARITA PANKEY, Defendant - Appellant. No. 10-4855 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHARITA LASHAWN PANKEY, Defendant - Appellant. Appeals from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:09-cr-00240-2; 5:05-cr-00094-1) Submitted: January 27, 2011 Decided: March 3, 2011 Before WILKINSON, SHEDD, and WYNN, Circuit Judges. Dockets.Justia.com Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 2 No. 10-4854 dismissed; No. 10-4855 affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Edward H. Weis, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 3 PER CURIAM: In these consolidated appeals, Sharita LaShawn Pankey appeals the judgment of conviction entered after her guilty plea to one count of aiding and abetting in the distribution of a quantity of cocaine base, in violation of 21 U.S.C. 841(a)(1) & 18 U.S.C. 2 (2006), and the judgment entered after the court revoked her supervised release and imposed a sentence. sole challenge is whether the district court Pankey's its abused discretion by ordering the two sentences to run consecutively. Based on the appeal waiver in the plea agreement, we dismiss Appeal No. 10-4854, while we affirm Appeal No. 10-4855. Pankey pled guilty pursuant to a plea agreement in which except she for agreed any to waive her right to she appeal may the have sentence to the preserved challenge determination of her Sentencing Guidelines sentence. A defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. 3742 (2006). United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990). This court reviews the validity of an appellate waiver de novo, and will enforce the waiver if it is valid and the issue appealed is within the scope thereof. Cir. 2005). United States v. Blick, 408 F.3d 162, 168 (4th Pankey does not challenge the validity of the 3 Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 4 appeal waiver. She argues that her appellate issue is not within the scope of the agreement. We conclude that the question of whether the district court abused its discretion by ordering the sentence to run consecutively to the sentence imposed based on the revocation of supervised release is within the scope of the appeal waiver and not within the exceptions to the waiver. See United States v. Calderon-Pacheco, 564 F.3d 55, 59 (1st Cir. 2009) (a challenge to consecutive sentences "is a garden-variety claim" that is within the scope of an appeal waiver); Trobee, 551 F.3d 835, 838-39 (8th Cir. United States v. Accordingly, 2009). based on the appeal waiver, which we will enforce, we dismiss Appeal No. 10-4854. Pankey's appeal waiver had no effect on the court's judgment revoking her supervised release and ordering a consecutive fifteen month sentence. This court will affirm a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-39 In making this determination, the court first Id. at 438. (4th Cir. 2006). considers whether the sentence is unreasonable. "This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines 4 sentences." United Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 5 States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks omitted). The however. 2010). district court's discretion is not unlimited, United States v. Thompson, 595 F.3d 544, 547 (4th Cir. For instance, the district court commits procedural error by failing to adequately explain the chosen sentence or by not providing an individualized assessment based on the facts. Gall v. United States, 552 U.S. 38, 51 (2007). court need not be as as detailed it must or be specific when Although "[a] imposing a a when revocation sentence imposing post- conviction sentence, . . . it still must provide a statement of reasons for the sentence imposed." (internal quotation marks omitted). forth enough to satisfy the Thompson, 595 F.3d at 547 The judge also must "set court that he has appellate considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks omitted). We conclude that the district court provided sufficient reasons for the consecutive sentences and adequately addressed Pankey's arguments for concurrent sentences. Accordingly, we affirm Appeal No. 10-4855. We dismiss Appeal No. 10-4854 and affirm Appeal No. 10-4855. We dispense with oral argument because the facts and 5 Case: 10-4854 Document: 29 Date Filed: 03/03/2011 Page: 6 legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. No. 10-4854 DISMISSED No. 10-4855 AFFIRMED 6

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