US v. Jeff Howell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00577-AW-1. Copies to all parties and the district court/agency. [999244604].. [13-4243]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4243

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFF DORIAN HOWELL,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Alexander Williams, Jr., District
Judge. (8:12-cr-00577-AW-1)

Submitted:

November 19, 2013

Before WYNN and
Circuit Judge.

FLOYD,

Circuit

Decided: November 21, 2013

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Julie L.B. Johnson,
Appellate Attorney, Greenbelt, Maryland, for Appellant.
Rod J.
Rosenstein, United States Attorney, Margaret A. Moeser, Special
Assistant United States Attorney, Adam K. Ake, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeff

Dorian

Howell

pled

guilty

to

reentry

after

deportation as an aggravated felon, in violation of 8 U.S.C.
§ 1326(a) & (b)(2) (2012), and was sentenced to twenty-seven
months of imprisonment.

On appeal he raises two issues, whether

his

procedurally

sentence:

(1)

was

unreasonable

because

the

district court failed to consider the 18 U.S.C. § 3553(a) (2012)
factors raised by defense counsel and applied the same standard
to reject his requests for a variance and departure, and (2) was
substantively unreasonable because the court improperly balanced
the § 3553(a) factors.

For the reasons that follow, we affirm.

In reviewing a sentence, we must first ensure that the
district

court

did

not

commit

any

“significant

procedural

error,” such as failing to properly calculate the applicable
Sentencing Guidelines range, failing to consider the § 3553(a)
factors, or failing to adequately explain the sentence.

Gall v.

United States, 552 U.S. 38, 51 (2007).

Once we have determined

that

we

there

is

no

procedural

error,

must

consider

the

substantive reasonableness of the sentence, taking into account
the totality of the circumstances.

Id.

If the sentence imposed

is within the appropriate Guidelines range, it is presumptively
reasonable.

Rita v. United States, 551 U.S. 338, 347 (2007).

The presumption may be rebutted by a showing that the sentence
is unreasonable when measured against the § 3553(a) factors.
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Montes–Pineda,

445

F.3d

375,

that

the

379

(4th

Cir.

2006).
Upon
committed

no

review,

procedural

Howell’s sentence.
seven-month
properly

we

conclude
or

substantive

district

error

in

court

imposing

Howell does not contest that the twenty-

sentence

calculated

he

received

advisory

was

at

Guidelines

the

bottom

range.

of

The

his

court

adequately explained why it rejected Howell’s arguments for an
eighteen-month sentence, which could have been achieved by a
downward variance or departure.

See United States v. Diosdado–

Star, 630 F.3d 359, 365-66 (4th Cir. 2011). ∗

A district court

has flexibility in fashioning a sentence even outside of the
Guidelines range and need only set forth enough to satisfy the
appellate court that it has considered the parties’ arguments
and

has

a

reasoned

basis

for

its

decision.

Id.

at

364.

Moreover, the court specifically addressed Howell’s argument for
lower

sentence

based

on

cultural

assimilation.

See

U.S.

Sentencing Guidelines Manual § 2L1.2. comment., (n.8) (2012).
Howell’s

sentence

is

substantively

∗

reasonable

because

it

was

Howell is incorrect that the district court needed to
apply a different standard to his request for a variance and
departure.
See Diosdado-Star, 630 F.3d at 364-65 (noting that
Rita v. United States, 551 U.S. 338 (2007), did not indicate
either a difference or preference between departures or
variances, or comment upon the precise procedure of applying
either).

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imposed within his advisory Guidelines range and he has failed
to

show

it

was

unreasonable

§ 3553(a) factors.

based

on

application

of

the

Montes-Pineda, 445 F.3d at 379.

Accordingly, we affirm Howell’s sentence.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would aid the decisional process.

AFFIRMED

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