United States v. Avery , 343 F. App'x 886 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY WAYNE AVERY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00302-JAB-1)
Submitted: August 6, 2009 Decided: August 27, 2009
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Michael Francis Joseph, Angela Hewlett Miller,
Assistant United States Attorneys, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Wayne Avery, Jr., pleaded guilty to two counts
of possession with intent to distribute crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006), and one
count of possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(2006). Avery received a sentence at the bottom of the
Guidelines range, consisting of concurrent terms of 202 months
on the drug counts and a consecutive sixty-month term on the
firearm charge, for a total sentence of 262 months. Avery filed
a timely notice of appeal. We affirm.
On appeal, Avery’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). In the brief,
counsel argues that the district court imposed an unreasonably
long sentence. Avery was informed of his right to file a pro se
supplemental brief, but has not done so.
We review sentences for reasonableness, applying an
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, __, 128 S. Ct. 586, 597-98 (2007); United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We first consider
whether the district court committed any significant procedural
error, such as improperly calculating the advisory Guidelines
range. United States v. Evans, 526 F.3d 155, 161 (4th Cir.),
cert. denied, 129 S. Ct. 476 (2008). We then assess the
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substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances. Id. Further, we
presume on appeal that a sentence within the advisory Guidelines
range is reasonable. Gall, 128 S. Ct. at 597; Pauley, 511 F.3d
at 473. Moreover, we must give due deference to the district
court’s decision that the 18 U.S.C. § 3553(a) factors justify
the sentence. Gall, 128 S. Ct. at 597. Even if we would have
imposed a different sentence, this fact alone is insufficient to
justify reversing the district court. Evans, 526 F.3d at 160.
In this case, the district court properly calculated
Avery’s Guidelines range. In addition, the district court was
aware of Avery’s interest in working on gang-prevention programs
and his desire to care for his children, the two issues that
Avery now says make his sentence unreasonable. The district
court weighed these considerations against Avery’s repeated
criminal conduct, the seriousness of the current offenses, and
the need for Avery’s punishment and deterrence. In considering
the sentencing factors, the district court found that a
Guidelines sentence was appropriate. We conclude Avery has not
rebutted our appellate presumption that the district court’s
sentence was reasonable.
As part of our review in this Anders appeal, we have
examined the full record, including the plea colloquy, and we do
not find any reversible errors. We therefore affirm Avery’s
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conviction and sentence. This court requires that counsel
inform Avery, in writing, of his right to petition the Supreme
Court of the United States for further review. If Avery
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 Avery. 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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