US v. Robert Bove

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00104-RJC-1 Copies to all parties and the district court/agency. [999303200].. [13-4477]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4477

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT BOVE,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:11-cr-00104-RJC-1)

Submitted:

February 20, 2014

Decided:

February 25, 2014

Before DUNCAN, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Marc L. Resnick, Washington, D.C., for Appellant.
Anne M.
Tompkins, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Robert
sentence

Bove

imposed

transportation
sexually

after

of

he

visual

explicit

§ 2252(a)(1)

appeals

his

pled

guilty

depictions

conduct,

(West

135-month,

Supp.

in

to

one

of

and

count

minors

violation

2013),

below-Guidelines
each

engaged

of

18

possession

of
in

U.S.C.A.
of

visual

depictions of minors engaged in sexually explicit conduct, in
violation of 18 U.S.C.A. § 2252(a)(4) (West Supp. 2013).

Bove

argues that his sentence is procedurally unreasonable because he
asserts

that

the

district

court

failed

to

duly

consider

his

argument that his sentence should be lower based on his low
recidivism

risk.

substantively

Bove

also

unreasonable

characteristics,

a

shorter

asserts

that

his

sentence

is

because

given

his

history

and

sentence

would

have

achieved

the

purposes of 18 U.S.C. § 3553(a) (2012).

Finding no error, we

affirm.
Because Bove requested a sentence different than the
one imposed, his claim was properly preserved, and this court
reviews

it

standard,

for

reasonableness

reversing

“unless

under

.

.

.

an
the

abuse
error

of

discretion

was

harmless.”

United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010)
(“By drawing arguments from § 3553 for a sentence different than
the

one

ultimately

imposed,

an

aggrieved

party

sufficiently

alerts the district court of its responsibility to render an
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individualized explanation addressing those arguments, and thus
preserves its claim.”).
This

review

requires

consideration

of

both

procedural and substantive reasonableness of a sentence.
v. United States, 552 U.S. 38, 51 (2007).
assess

whether

advisory

the

Guidelines

analyzed

any

district
range,

arguments

court

the

§

by

presented

Gall

This court must first

properly

considered

the

calculated

the

sufficiently explained the selected sentence.

3553(a)

the

factors,

parties,

and

Id. at 49-50; see

Lynn, 592 F.3d at 576 (“[A]n individualized explanation must
accompany every sentence.”); United States v. Carter, 564 F.3d
325,

330

assessment

(4th
.

.

Cir.
.

2009)

must

(holding

provide

a

that

the

rationale

“individualized
tailored

to

the

particular case at hand and [be] adequate to permit meaningful
appellate

review”)

omitted).

(internal

“Although

comprehensive,

detailed

a

quotation

marks

need

necessarily

court
opinion,

the

not

court’s

and

citation
issue

explanation

a

must

nonetheless be sufficient ‘to satisfy the appellate court that
the district court has considered the parties’ arguments and has
a reasoned basis for exercising its own legal decisionmaking
authority.’”

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

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

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The

district

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court’s

elaborate or lengthy,” however.
this court has noted:

explanation

“need

not

be

Carter, 564 F.3d at 330.

As

“Gall was quite explicit that district

courts should provide more significant justifications for major
departures than for minor ones.

But when a district court does

not depart or vary at all, it may provide a less extensive,
while

still

individualized,

explanation.”

United

States

v.

Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal citations,
quotation marks and brackets omitted).
If there is no procedural error, we may then review
the substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.”

United States v.

Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation
marks

and

citation

substantive

omitted).

reasonableness,

“In

we

analyzing

consider

the

a

sentence

sentence

for

under

a

deferential abuse-of-discretion standard, whereby we must defer
to the trial court and can reverse a sentence only if it is
unreasonable,

even

if

the

sentence

choice of the appellate court.”
722

F.3d

omitted).

583,
We

590

(4th

apply

a

Cir.

would

not

have

been

the

United States v. Yooho Weon,

2013)

presumption

(internal
of

quotation

reasonableness

marks
to

a

sentence within or below a properly calculated Guidelines range.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
4

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We

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reject

procedurally

Bove’s

unreasonable

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argument

and

that

should

be

his

sentence
because

vacated

is
the

district court allegedly failed to mention counsel’s argument
that he presented a low risk of reoffending.
look

to

the

entirety

of

Bove’s

This court may

sentencing

proceeding

to

determine whether the district court understood his argument for
a reduced sentence but had reasons for rejecting that argument.
See Rita, 551 U.S. at 344-45, 358-59.
record that the district court:

It is apparent from the

(1) engaged in discussion about

counsel’s arguments for a lesser sentence; (2) fully considered
counsel’s arguments, including his argument that Bove’s low risk
of

reoffending

argument

that

required
Bove’s

a

lesser

alleged

sentence;

low

recidivism

(3)

rejected

risk

the

required

a

lesser sentence; and (4) thoroughly considered and discussed the
§ 3553(a)

factors

Accordingly,
district

we

court.

it

find

believed
no

Cf.

justified

procedural
Lynn,

592

Bove’s

sentencing
F.3d

at

sentence.

error

583-85

by

the

(finding

reversible error where the district court gave “no indication
that

[it]

considered

the

defendant’s

nonfrivolous

arguments

prior to sentencing him” and stated only that it found Lynn’s
sentence to be “fair and appropriate and consistent with the
requirements

of

§ 3553(a)”

before

imposing

(internal ellipses and brackets omitted).

5

Lynn’s

sentence)

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We

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also

reject

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Bove’s

argument

that

his

135–month

below-Guidelines range sentence was substantively unreasonable
and

greater

than

necessary

to

achieve

§ 3553(a)’s

purposes.

After considering the district court’s thorough explanation for
the chosen sentence and its explicit discussion of the § 3553(a)
factors, and after considering the parties’ arguments, we find
that

Bove

has

failed

to

rebut

the

appellate

presumption

of

reasonableness this court affords his below-Guidelines sentence.
Susi, 674 F.3d at 289.

Accordingly, we conclude that Bove’s

sentence is not substantively unreasonable.
Based on the foregoing, we affirm the district court’s
judgment.
legal
before

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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