United States v. Richard Silcox , 474 F. App'x 1000 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5186
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD SHANE SILCOX,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00264-NCT-1)
Submitted: July 19, 2012 Decided: August 13, 2012
Before AGEE, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Shane Silcox appeals his 120-month sentence
imposed after he pled guilty pursuant to a plea agreement to one
count of possessing materials containing visual images of child
pornography, in violation of 18 U.S.C.A. § 2252A (West 2000 &
Supp. 2012). Silcox argues on appeal that his sentence should
be vacated because he asserts it was: (1) based on a Guidelines
range above the statutory maximum applicable to his offense; and
(2) greater than necessary to accomplish the purposes of 18
U.S.C. § 3553(a) (2006). Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
the court to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Procedural errors include “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 — including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
2
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). However, we
review unpreserved non-structural sentencing errors for plain
error. Id. at 576-77.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). If the sentence is within the Guidelines
range, we presume that the sentence is reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010)
(“[W]e may and do treat on appeal a district court’s decision to
impose a sentence within the Guidelines range as presumptively
reasonable.”); see Rita v. United States, 551 U.S. 338, 346-56
(2007) (permitting appellate presumption of reasonableness for
within-Guidelines sentence).
We have reviewed the record and have considered the
parties’ arguments and conclude that Silcox’s 120-month sentence
is procedurally and substantively reasonable. Contrary to
Silcox’s assertions, the record discloses that the district
court properly set his Guidelines range at 120 months. Thus, we
find no procedural unreasonableness in the district court’s
sentence. Nor do we detect substantive unreasonableness in
Silcox’s within-Guidelines sentence. The district court
3
cogently explained its rationale for imposing the statutory
maximum sentence. In affirming, we respect the district court’s
broad discretion in weighing the § 3553(a) factors and imposing
a defendant’s sentence. See United States v. Jeffery, 631 F.3d
669, 679-80 (4th Cir.), cert. denied, 132 S. Ct. 187 (2011).
Accordingly, we affirm the district court’s judgment.
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
4