US v. Sharita Pankey

Filing

UNPUBLISHED PER CURIAM OPINION filed.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]

US v. Sharita Pankey

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Case: 10-4854

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Date Filed: 03/03/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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

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No. 10-4854 dismissed; No. 10-4855 affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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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

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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

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