US v. Tonyal Locklear

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00231-JAB-3. Copies to all parties and the district court/agency. [999468593]. [14-4287]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4287

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONYAL LOCKLEAR,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00231-JAB-3)

Submitted:

October 28, 2014

Decided:

November 4, 2014

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Harvey A. Carpenter IV, THE LAW OFFICES OF HA (ALEC) CARPENTER
IV, Greensboro, North Carolina, for Appellant. Kyle David
Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tonyal

Locklear

appeals

his

conviction

and

thirty-three month sentence imposed following his guilty plea to
possession of counterfeit federal reserve notes, in violation of
18 U.S.C. § 472 (2012).

On appeal, Locklear’s counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating

that

there

are

no

meritorious

issues

for

appeal

but

questioning whether the district court abused its discretion in
(1) denying Locklear’s request for a sentence at the bottom of
the

Guidelines

sentence

be

range,

served

and
in

(2)

the

declining
North

to

Carolina

order

that

the

Department

of

Corrections, concurrently with his undischarged state sentence.
Locklear was notified of his right to file a pro se supplemental
brief but has not done so.
a response brief.
We

The Government has declined to file

For the reasons that follow, we affirm.

review

Locklear’s

sentence

for

reasonableness,

applying “a deferential abuse-of-discretion standard.”
United States, 552 U.S. 38, 41 (2007).
that

the

district

court

committed

no

Gall v.

We “must first ensure
significant

procedural

error,” including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors,

and

inadequate

explanation

of

the

sentence

imposed.

Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010).
2

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If

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we

find

no

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procedural

error,

we

examine

the

substantive reasonableness of a sentence under “the totality of
the circumstances.”

Gall, 552 U.S. at 51.

The sentence imposed

must be “sufficient, but not greater than necessary,” to satisfy
the goals of sentencing.

See 18 U.S.C. § 3553(a).

We presume

that a within-Guidelines sentence is substantively reasonable,
and the defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”
445

F.3d

375,

379

(4th

Cir.

United States v. Montes-Pineda,
2006)

(internal

quotation

marks

omitted).
Counsel first questions whether the court abused its
discretion

in

imposing

a

sentence

of

thirty-three

instead of the thirty-month sentence he requested.

months,

We conclude

Locklear has failed to rebut the presumption of reasonableness
accorded his within-Guidelines sentence.

See id.

Turning to Locklear’s request that his sentence run
concurrently with the state sentence he was already serving, “if
a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may
run concurrently or consecutively.”

18 U.S.C. § 3584(a) (2012);

see U.S. Sentencing Guidelines Manual (“USSG”) § 5G1.3(c).
court

is

determining

required

to

consider

the

whether

to

run

sentences

the
3

§ 3553(a)

The

factors

in

consecutively

or

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concurrently.
also

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18 U.S.C. § 3584(b).

enumerates

a

determination.

series

of

The Guidelines commentary

factors

USSG

consideration

cmt.

n.3(A).

these

of

§ 5G1.3
factors,

while

724

F.3d

to

recommended,

required by either statute or § 5G1.3(c).
Nania,

relevant

824,

838

(7th

Cir.

this

Specific
is

not

See United States v.

2014);

see

also

United

States v. Rodriguez, 715 F.3d 451, 451-52 (2d Cir. 2013), cert.
denied, 134 S. Ct. 1042 (2014).
Here,

the

court

complied

consider the § 3553(a) factors.
not

specifically

address

with

its

obligation

to

While the sentencing court did

the

USSG

§ 5G1.3

factors,

this

information was before the court when it sentenced Locklear, and
we perceive no error.
Finally,

with

regard

to

Locklear’s

request

that

he

serve his sentence in the North Carolina Department of Adult
Corrections,

the

Bureau

of

Prisons

has

sole

authority

to

determine whether a federal prisoner’s sentence is to be served
in federal or state court.
Tapia

v.

United

States,

131

See 18 U.S.C. § 3621(b) (2012);
S.

Ct.

2382,

2390-91

(2011).

Therefore, this claim entitles Locklear to no relief.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Locklear’s conviction and sentence.

This

court requires that counsel inform Locklear, in writing, of the
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right to petition the Supreme Court of the United States for
further review.

If Locklear requests that a petition be filed,

but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation.

Counsel’s motion must state that a copy thereof

was served on Locklear.
We dispense with oral argument because the facts and
legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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