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United States v. Hulse-Ebanks , 348 F. App'x 883 ( 2009 )


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  •                               UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4087
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ALEJANDRO HULSE-EBANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cr-00140-RBS-FBS-1)
Submitted:     September 24, 2009           Decided:   October 26, 2009
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant.   Dana J. Boente, Acting United States Attorney,
Randy Stoker,    Assistant United States Attorney,     Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Hulse-Ebanks pled guilty to unlawful reentry by
a previously deported felon,
    8 U.S.C. § 1326
    (a), (b)(2) (2006),
and   was   sentenced   to    seventy-two     months       in    prison.      He   now
appeals his sentence.        We affirm.
I
Hulse-Ebanks      first     contends    that    he    was    denied    his
right of allocution, Fed. R. Crim. P. 32(i)(4)(A)(ii), because
the district court pronounced sentence prior to affording him
the opportunity to address the court.              We disagree.
At sentencing, the court first found that the advisory
Guidelines range had been correctly calculated.                    Next, the court
addressed    in   detail     the
    18 U.S.C. § 3553
    (a)(2006)           sentencing
factors and their application to this case.                     Finally, the court
concluded that a sentence of seventy-two months was “sufficient
but not greater than necessary to comply with the purposes of”
§ 3553.     The court then stated, “Before the court finalizes any
sentence that it imposes, the defendant . . . may . . . make any
statement to the court that he wishes to make.”                         Hulse-Ebanks
addressed the court.          The court then sentenced him to seventy-
two months in prison.         In pronouncing sentence, the court stated
that it had considered his statement.
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We conclude that Hulse-Ebanks was not denied his right
of allocution.     Rather, while the district court announced a
tentative sentence, it did not impose that sentence until after
hearing Hulse-Ebanks’ allocution.           There was no violation of
Rule 32(i)(4)(A)(ii).      See   United States v. Boose,
    403 F.3d 1016
    , 1017 (8th Cir. 2005); United States v. Lopez-Lopez,
    295 F.3d 165
    , 171 (1st Cir. 2002); United States v. Leasure,
    122 F.3d 837
    , 840 (9th Cir. 1997).
II
Hulse-Ebanks      contends        that      his      sentence    is
unreasonable because it is longer than necessary to achieve the
statutory goals of sentencing set forth in
    18 U.S.C. § 3553
    (a).
We review a sentence for reasonableness, applying an abuse-of-
discretion standard.     Gall v. United States,
    552 U.S. 38
    ,
    128 S. Ct. 586
    , 597 (2007).     In conducting our review, we first examine
the   sentence   for   “significant     procedural      error,”    including
“failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.”       Id.     The     district     court     must     provide   an
“individualized assessment” based upon the specific facts before
it.   United States v. Carter,
    564 F.3d 325
    , 328 (4th Cir. 2009)
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(emphasis     omitted).          We        next     “consider     the     substantive
reasonableness of the sentence imposed.”
    Id.
         At this stage, we
“take into account the totality of the circumstances.”                            Gall,
    128 S. Ct. at 597
    .
Here,    the    district         court     followed     the     necessary
procedural     steps       in    sentencing            Hulse-Ebanks,        correctly
calculating    the     advisory        Guidelines        range,     performing      an
individualized      assessment        of    the     § 3553(a)     factors    as   they
applied to the facts of the case, and stating in open court the
reasons for the sentence.              We may presume that the sentence,
which falls within the advisory Guidelines range, is reasonable.
See United States v. Pauley,
    511 F.3d 468
    , 473 (4th Cir. 2007).
Hulse-Ebanks     offers     no    persuasive          argument     to     rebut   this
presumption.     We conclude that the sentence is procedurally and
substantively reasonable and that the district court did not
abuse its discretion in sentencing him to seventy-two months in
prison.
III
We accordingly affirm.                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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