US v. Kevin Dickerson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:10-cr-00011-SGW-1 Copies to all parties and the district court/agency. [998617083].. [10-4906]

Appeal: 10-4906

Document: 29

Date Filed: 06/22/2011

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4906

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
G. Steven Agee, Circuit
Judge, sitting by designation; Samuel G. Wilson, District Judge.
(7:10-cr-00011-SGW-1)

Submitted:

May 31, 2011

Before KING and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

June 22, 2011

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Larry W. Shelton,
Assistant Federal
Appellant. Timothy
Wolthuis, Assistant
for Appellee.

Federal Public Defender, Fay F. Spence,
Public Defender, Roanoke, Virginia, for
J. Heaphy, United States Attorney, Donald R.
United States Attorney, Roanoke, Virginia,

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kevin Nevoyle Dickerson pled guilty to conspiracy to
distribute and possess with intent to distribute more than 1000
grams of heroin, in violation of 21 U.S.C. § 846 (2006), and
attempt

to

violation

distribute

of

§ 846.

more
The

than
court

100

sentenced

offender to 262 months’ imprisonment.
sentence

is

procedurally

grams

of

him

heroin,
as

a

in

career

Dickerson argues that his

unreasonable

because

the

court

(1)

presumed the reasonableness of a within-Guidelines sentence, (2)
failed

to

explain

why

it

rejected

his

argument

that

his

extraordinary cooperation warranted a greater than three-level
sentence reduction, and (3) failed to explain why it rejected
his arguments that the career offender Guidelines should not
apply.

Finding no error, we affirm.
In

sentence,

determining

the

consider

whether

we

calculated

the

U.S.C.

3553(a)

§

presented

by

advisory

the

the

Guidelines

(2006)

factors,

parties,
Gall

procedural

v.

and

reasonableness

district
range,

court

sufficiently

United

States,

any

the

18

arguments

explained

552

a

properly

considered

analyzed

of

U.S.

38,

the

selected

sentence.

51

(2007).

“Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.”

United States v. Carter, 564 F.3d
2

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325, 330 (4th Cir. 2009) (internal quotation marks omitted).
The

explanation

must

be

sufficient

to

allow

for

“meaningful

appellate review,” id. at 328, such that the appellate court
Id. at 329

need “not guess at the district court’s rationale.”
(internal quotation marks omitted).

Dickerson asserts that the district court improperly
applied

a

sentence.

presumption

of

reasonableness

in

fashioning

his

In Rita v. United States, 551 U.S. 338 (2007), the

Supreme Court held that an appellate court may presume that a
within-Guidelines sentence is reasonable.

Id. at 351.

We have

recognized, however, that “Rita presumptions are forbidden in
sentencing courts . . . [because] they confer the force of law
upon the Guidelines.”

United States v. Mendoza-Mendoza, 597

F.3d 212, 217 (4th Cir. 2010).
presumption

of

If the district court applies a

reasonableness

in

the

initial

sentencing

proceeding, the “sentence is procedurally unreasonable.”
216-17.

Id. at

On the other hand, we have explained that a district

court does not impermissibly apply a presumption in favor of a
Guidelines sentence if it “use[s] the Guidelines to orient its
thinking” and “the process of sentencing begins with correctly
calculating the Guidelines sentencing range.”
does

a

district

Guidelines

court

sentence

in

violate
the

case

Rita
or

“simply
by

by

deeming

fitting or appropriate sentence for the case.”
3

Id. at 217.

Nor

selecting
it

Id.

the

a

most

Our review

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of the record leads us to conclude that the sentencing court
considered

its

impermissible

obligations

presumption

under

that

without

any

Guidelines

a

§ 3553(a)

sentence

was

reasonable.
Next, Dickerson claims that the district court failed
to explain why it rejected his arguments for a below-Guidelines
sentence and that the career offender Guidelines should not be
applied to him.

Dickerson preserved these issues for appeal

“[b]y drawing arguments from § 3553 for a sentence different
United States v. Lynn, 592

than the one ultimately imposed.”
F.3d 572, 578 (4th Cir. 2010).

Id. at 581, 583-84.

of discretion.
procedurally

Thus, our review is for an abuse

erred

and

thus

abused

If the district court

reverse unless the error is harmless.

its

The
whole,

court’s

indicate

that

Dickerson’s arguments.

statements
it

discretion,

we

must

Id. at 581, 585.

at

considered

sentencing,
and

taken

rejected

as

each

a
of

The court determined that, based upon

the facts before it, Dickerson deserved a low-end Guidelines
sentence.

On the record, we conclude without difficulty that

the district court did not procedurally err.
The judgment of the district court is affirmed.
dispense

with

oral

argument

because

4

the

facts

and

We

legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

5