US v. Timothy Cleveland

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cr-00784-HMH-1. Copies to all parties and the district court. [999761833]. [15-4481]

Appeal: 15-4481

Doc: 21

Filed: 02/25/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4481

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ARAZIL CLEVELAND,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:14-cr-00784-HMH-1)

Submitted:

February 23, 2016

Decided:

February 25, 2016

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Benjamin
T.
Stepp,
Assistant
Greenville, South Carolina, for
Howard, Assistant United States
Carolina, for Appellant.

Federal
Public
Defender,
Appellant.
Elizabeth Jean
Attorney, Greenville, South

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4481

Doc: 21

Filed: 02/25/2016

Pg: 2 of 4

PER CURIAM:
Timothy Arazil Cleveland pled guilty to bank robbery, in
violation of 18 U.S.C. § 2113 (2012).
Guidelines

sentence

of

Cleveland’s

counsel

57

has

months’

filed

a

He received a within-

imprisonment.

brief

pursuant

On
to

appeal,

Anders

v.

California, 386 U.S. 738 (1967), certifying that there are no
meritorious

grounds

for

appeal

but

questioning

whether

the

district court erred in calculating Cleveland’s criminal history
points.
issue.

Cleveland has filed a pro se brief raising the same
The Government declined to file a response.

We review Cleveland’s sentence for reasonableness “under a
deferential
States,

abuse-of-discretion

552

U.S.

38,

41,

standard.”

51

(2007).

Gall

This

v.

review

United
entails

appellate consideration of both the procedural and substantive
reasonableness of the sentence.
procedural
court

reasonableness,

properly

range,

gave

calculated

the

we

Id. at 51.
consider

whether

the

parties

defendant’s

an

opportunity

In determining
the

advisory
to

district
Guidelines

argue

for

an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors,

selected

clearly

erroneous,

sentence.

a

sentence
and

based

sufficiently

on

facts

explained

that
the

were

not

selected

Id. at 49-51.

If the sentence is free of “significant procedural error,”
we

review

it

for

substantive

reasonableness,
2

“tak[ing]

into

Appeal: 15-4481

Doc: 21

Filed: 02/25/2016

Pg: 3 of 4

account the totality of the circumstances.”

Id. at 51.

Any

sentence within or below a properly calculated Guidelines range
is

presumptively

substantively

reasonable.

United

States

v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th
Cir.

2012).

Such

a

presumption

can

only

be

rebutted

by

a

showing that the sentence is unreasonable when measured against
the § 3553(a) factors.

Louthian, 756 F.3d at 306.

Because Cleveland did not object below to the calculation
of his criminal history points, our review is limited to plain
error.

United States v. Hamilton, 701 F.3d 404, 410 (4th Cir.

2012).

To establish plain error, a defendant must show that

“(1) there is an error, (2) the error is plain, and (3) the
error affects substantial rights.”
133

S.

Ct.

1121,

1126

alteration omitted).

(2013)

Henderson v. United States,

(internal

quotation

marks

and

We conclude that the district court did

not err in assessing the disputed criminal history points.

See

U.S. Sentencing Guidelines Manual § 4A1.1(e) (2014) (directing
that one point be added for each prior sentence resulting from a
conviction of a crime of violence that did not receive points
under USSG § 4A1.1(a) because such sentence was treated as a
single sentence).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.
3

We

Appeal: 15-4481

Doc: 21

Filed: 02/25/2016

Pg: 4 of 4

therefore affirm the amended judgment.

This court requires that

counsel inform Cleveland, in writing, of the right to petition
the Supreme Court of the United States for further review.
Cleveland

requests

that

a

petition

be

filed,

but

If

counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Cleveland.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.

AFFIRMED

4