US v. Derrick Hairston
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00313-WO-1. Copies to all parties and the district court/agency . [17-4018]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
DERRICK MONTE HAIRSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., Chief District Judge. (1:11-cr-00313-WO-1)
Submitted: October 19, 2017
Decided: October 23, 2017
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke, First Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Michael Francis Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Derrick Monte Hairston appeals his 114-month sentence imposed after his original
235-month sentence was vacated pursuant to a 28 U.S.C. § 2255 (2012) motion. Hairston
was initially sentenced as an armed career criminal pursuant to his guilty plea to
possession of a firearm by a convicted felon. In his § 2255 proceeding, the district court
determined that Hairston was not an armed career criminal. At his second sentencing
hearing, Hairston was sentenced to 114 months’ imprisonment, which was below the
Sentencing Guidelines range and statutory maximum sentence of 120 months. *
On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious issues for appeal, but questioning
whether the district court imposed a substantively unreasonable sentence.
Government declined to file a brief, and Hairston has not filed a pro se supplemental
brief. For the reasons that follow, we affirm.
abuse-of-discretion standard.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir.
2017) (internal quotation marks omitted), cert. denied, __ S. Ct. __ No. 17-5092, 2017
WL 2909366 (U.S. Oct. 2, 2017). A sentence must be “sufficient, but not greater than
necessary,” to satisfy the statutory purposes of sentencing. See 18 U.S.C. § 3553(a)
(2012). We presume that a sentence within or below a properly calculated Guidelines
The Guidelines range was 120 to 150 months in prison. However, because the
statutory maximum was 120 months, the Guidelines range also became 120 months.
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range is substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir.
2014). Hairston bears the burden to rebut this presumption “by showing that the sentence
is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
Hairston’s counsel questions whether Hairston’s sentence of imprisonment is
substantively unreasonable, citing various mitigating factors. However, the district court
considered those factors, as well as the relevant aggravating factors, in sentencing
Hairston and provided a reasoned basis for concluding that a slight variance below the
statutory maximum and Guidelines range was warranted given Hairston’s acceptance of
responsibility. Based on our review of the record as a whole, we conclude that Hairston
fails to rebut the presumption of substantive reasonableness accorded his sentence. See
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm Hairston’s sentence.
This court requires that counsel inform Hairston, in writing, of the right to petition the
Supreme Court of the United States for further review. If Hairston 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 Hairston. 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.
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