United States v. Jeff Howell , 547 F. App'x 191 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFF DORIAN HOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:12-cr-00577-AW-1)
Submitted: November 19, 2013 Decided: November 21, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Julie L.B. Johnson,
Appellate Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Margaret A. Moeser, Special
Assistant United States Attorney, Adam K. Ake, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeff Dorian Howell pled guilty to reentry after
deportation as an aggravated felon, in violation of 8 U.S.C.
§ 1326(a) & (b)(2) (2012), and was sentenced to twenty-seven
months of imprisonment. On appeal he raises two issues, whether
his sentence: (1) was procedurally unreasonable because the
district court failed to consider the 18 U.S.C. § 3553(a) (2012)
factors raised by defense counsel and applied the same standard
to reject his requests for a variance and departure, and (2) was
substantively unreasonable because the court improperly balanced
the § 3553(a) factors. For the reasons that follow, we affirm.
In reviewing a sentence, we must first ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Sentencing Guidelines range, failing to consider the § 3553(a)
factors, or failing to adequately explain the sentence. Gall v.
United States, 552 U.S. 38, 51 (2007). Once we have determined
that there is no procedural error, we must consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id. If the sentence imposed
is within the appropriate Guidelines range, it is presumptively
reasonable. Rita v. United States, 551 U.S. 338, 347 (2007).
The presumption may be rebutted by a showing that the sentence
is unreasonable when measured against the § 3553(a) factors.
2
United States v. Montes–Pineda, 445 F.3d 375, 379 (4th Cir.
2006).
Upon review, we conclude that the district court
committed no procedural or substantive error in imposing
Howell’s sentence. Howell does not contest that the twenty-
seven-month sentence he received was at the bottom of his
properly calculated advisory Guidelines range. The court
adequately explained why it rejected Howell’s arguments for an
eighteen-month sentence, which could have been achieved by a
downward variance or departure. See United States v. Diosdado–
Star, 630 F.3d 359, 365-66 (4th Cir. 2011). ∗ A district court
has flexibility in fashioning a sentence even outside of the
Guidelines range and need only set forth enough to satisfy the
appellate court that it has considered the parties’ arguments
and has a reasoned basis for its decision. Id. at 364.
Moreover, the court specifically addressed Howell’s argument for
lower sentence based on cultural assimilation. See U.S.
Sentencing Guidelines Manual § 2L1.2. comment., (n.8) (2012).
Howell’s sentence is substantively reasonable because it was
∗
Howell is incorrect that the district court needed to
apply a different standard to his request for a variance and
departure. See Diosdado-Star, 630 F.3d at 364-65 (noting that
Rita v. United States, 551 U.S. 338 (2007), did not indicate
either a difference or preference between departures or
variances, or comment upon the precise procedure of applying
either).
3
imposed within his advisory Guidelines range and he has failed
to show it was unreasonable based on application of the
§ 3553(a) factors. Montes-Pineda, 445 F.3d at 379.
Accordingly, we affirm Howell’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would aid the decisional process.
AFFIRMED
4