United States v. Kinley , 334 F. App'x 557 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5086
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LISA TODD KINLEY,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00428-WO-16)
Submitted: October 2, 2009 Decided: October 22, 2009
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lisa Todd Kinley pled guilty pursuant to a plea
agreement to conspiracy to manufacture and to distribute 500
grams or more of methamphetamine and possession of
pseudoephedrine, knowing that it would be used to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 802(34)(K),
841(a)(1), (b)(1)(A), (c)(2), 846 (2006). The district court
sentenced Kinley to the minimum imprisonment term required by
statute, 120 months. Kinley now appeals. 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
sentencing Kinley to 120 months’ imprisonment. We affirm.
We review Kinley’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, ___, ___, 128 S. Ct. 586, 591, 594 (2007). The first step
in this review requires us to “ensure that the district court
committed no significant procedural error, such as improperly
calculating the Guidelines range.” United States v. Osborne,
514 F.3d 377, 387 (4th Cir.) (internal quotation marks,
citations and alterations omitted), cert. denied, 128 S. Ct.
2525 (2008). We then consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 128 S. Ct. at 597. When reviewing a
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sentence on appeal, we presume that a sentence within a properly
calculated Guideline range is reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007). Further, a
“statutorily required sentence . . . is per se reasonable.”
United States v. Farrior, 535 F.3d 210, 224 (4th Cir.), cert.
denied, 129 S. Ct. 743 (2008).
Kinley was subject to a statutorily-mandated minimum
prison term of ten years under 21 U.S.C. § 841(b)(1)(A).
Although Kinley’s initial Guidelines range had she not been
subject to a mandatory minimum sentence would have been 97 to
121 months, the district court properly took the mandatory
minimum term into account to determine that Kinley’s Guidelines
range was 120 to 121 months. The court gave the parties an
opportunity to argue for an appropriate sentence in that range
and heard allocution from Kinley. The 120-month prison sentence
Kinley received was within the properly calculated Guidelines
range and the minimum required by statute. Accordingly, we
conclude that the district court did not abuse its discretion in
sentencing Kinley.
As required by Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Kinley, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Kinley 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 Kinley. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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