United States v. Alan Lun Wai Ng , 378 F. App'x 299 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4305
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALAN LUN WAI NG, a/k/a Lun Waing,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00024-RLV-CH-1)
Submitted: April 15, 2010 Decided: May 14, 2010
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alan Lun Wai Ng pled guilty, without the benefit of a
plea agreement, to conspiracy to possess with intent to
distribute marijuana, in violation of 21 U.S.C. § 846 (2000),
and possession with intent to distribute marijuana, in violation
of 21 U.S.C. § 841 (2006). Ng was sentenced at the bottom of
his advisory Sentencing Guidelines range to twenty-four months’
imprisonment. On appeal, Ng’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating,
in his view, there are no meritorious issues for appeal, but
raising the issues of whether the district court committed
procedural errors in imposing Ng’s sentence and whether Ng’s
sentence is substantively unreasonable. ∗ We affirm the judgment
of the district court.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008). In reviewing a sentence, the
appellate court must first ensure that the district court
committed no procedural error. Gall, 552 U.S. at 51. If there
are no procedural errors, the appellate court then considers the
∗
Ng was informed of his right to file a pro se supplemental
brief. He has elected not to do so.
2
substantive reasonableness of the sentence. Id. A substantive
reasonableness review entails taking into account the totality
of the circumstances. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007) (quotations and citation omitted). This
court presumes that a sentence within a properly calculated
guidelines range is reasonable. See United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50). Accordingly, a
sentencing court must apply the relevant 18 U.S.C. § 3553(a)
(2006) factors to the particular facts presented and must “state
in open court” the particular reasons that support its chosen
sentence. Id. Stating in open court the particular reasons for
a chosen sentence requires the district court to set forth
enough to satisfy this court that the district court has a
reasoned basis for its decision and has considered the parties’
arguments. Id. “‘Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different sentence’ than
that set forth in the advisory Guidelines, a district judge
should address the party’s arguments and ‘explain why he has
rejected those arguments.’” Id. (quoting Rita v. United States,
551 U.S. 338, 356 (2007). Failure to address a party’s non-
3
frivolous sentencing arguments and adequately explain the chosen
sentence constitutes procedural error. United States v. Lynn,
592 F.3d 572, 575-76 (4th Cir. 2010).
We recently clarified the standard of review
applicable to the adequacy of a district court’s explanation of
a defendant’s sentence and the method by which a defendant may
preserve an objection to that explanation. Lynn, 592 F.3d at
576-78. “[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, [this court] review[s] for abuse of discretion” and will
reverse unless the court can conclude “that the error was
harmless.” Id. at 576. “An aggrieved party sufficiently alerts
the district court of its responsibility to render an
individualized explanation” by drawing arguments from § 3553
“for a sentence different than the one ultimately imposed,” and
thereby, the party sufficiently “preserves its claim.” Id. at
578. However, if a defendant fails to preserve his or her
claim, this court reviews only for plain error. Id. at 577.
Here, Ng sufficiently preserved his claims by arguing for a
variance sentence, and they are, therefore, reviewed for abuse
of discretion. See United States v. Thompson, 595 F.3d 544, 546
(4th Cir. 2010).
Ng first claims the district court erred in denying
his request for a variance sentence on the ground that he had
4
already received the benefit of a minor role adjustment and the
safety valve provision. The transcript clearly indicates,
though, that the district court did not deny a further reduction
because of the safety valve provision and USSG § 3B1.1, but
merely cited to those two provisions to explain that the court
was “being generous with the sentence” by not imposing a
sentence at the high end or above Ng’s advisory guidelines
range. Accordingly, Ng fails to demonstrate error by the
district court, and his claim fails.
Ng next argues that the district court committed
procedural error in failing to address his argument that, due to
his status as a deportable alien, the district court should
impose a variance sentence. See 18 U.S.C. § 3553(a)(6).
According to Ng, his status as a deportable alien created
unwarranted sentencing disparities between himself and a U.S.
citizen found guilty of similar conduct because he would not be
eligible to spend the final ten percent of his sentence in a
halfway house and would remain detained pending deportation.
In sentencing Ng, the district court indicated that it
would have been inclined to impose a sentence near the high end
of Ng’s advisory guidelines range due to questions surrounding
Ng’s disclosures to the Government. However, the district court
selected a sentence near the bottom of Ng’s advisory guidelines
range due to Ng’s family situation and lack of a prior record.
5
The district court then stated that it “will decline to give any
variance because it is not appropriate under these
circumstances.” The district court never explicitly stated why
Ng’s reasons for a variance sentence were rejected. Assuming
that the district court’s failure to provide such an explanation
constituted significant procedural error, we find the error was
harmless because the Bureau of Prisons is given sole authority
to determine where an inmate will serve his or her sentence.
See 18 U.S.C. § 3621(b) (2006); Elwood v. Jeter, 386 F.3d 842,
844, 847 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17, 22 (1st
Cir. 2004); see also 18 U.S.C. § 3624(c)(2) (2006) (authorizing
the Bureau of Prisons to place a defendant in a halfway house).
Finally, Ng’s sentence was substantively reasonable.
This court presumes a sentence within the guidelines range is
reasonable, and the record does not rebut that presumption in
this case.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Ng’s convictions and sentence. This court
requires that counsel inform Ng, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Ng 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
6
representation. Counsel’s motion must state that a copy thereof
was served on Ng. 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
7