United States v. Jennings , 376 F. App'x 358 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5190
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCUS NIKITA JENNINGS, a/k/a Marcus Jennings, a/k/a Marc
Jennings, a/k/a Mark Jennings,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, District
Judge. (6:06-cr-00004-nkm-1)
Submitted: April 29, 2010 Decided: May 3, 2010
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Christine Madeleine Spurell,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Ronald Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Nikita Jennings pled guilty, pursuant to a plea
agreement, to distribution of five grams or more of cocaine
base, pursuant to 21 U.S.C. § 841(a)(1) (2006). The conditional
plea preserved Jennings’ right to appeal the district court’s
denial of his motion to suppress. Jennings was sentenced to 188
months’ imprisonment. Jennings’ attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
alleging that the district court erred in denying Jennings’
motion to suppress. Although informed of his right to do so,
Jennings has not filed a pro se supplemental brief. The
Government did not file a reply brief. Finding no reversible
error, we affirm.
In reviewing the district court’s ruling on a motion
to suppress, we review the district court’s factual findings for
clear error, and its legal determinations de novo. United
States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). The facts
are reviewed in the light most favorable to the prevailing party
below. United States v. Jamison, 509 F.3d 623, 628 (4th Cir.
2007). With these standards in mind, and having reviewed the
transcript of the suppression hearing, we conclude the district
court did not err in denying Jennings’ motion to suppress.
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We review Jennings’ sentence for reasonableness under
an abuse of discretion standard. * Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. In determining whether a
sentence is procedurally reasonable, this court must first
assess whether the district court properly calculated the
defendant’s advisory Guidelines range. Id. at 49-50. This
court then must consider whether the district court considered
the factors in 18 U.S.C. § 3553(a) (2006), analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. “Regardless of whether the district
court imposes an above, below, or within-Guidelines sentence, it
must place on the record an ‘individualized assessment’ based on
the particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (citation omitted).
Although the district court procedurally erred when it
imposed Jennings’ sentence without explicitly making an
*
Though Jennings’ plea agreement contained an appeal waiver
in which Jennings agreed to waive his right to appeal his
sentence, the Government has failed to assert this waiver. See
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(where Anders brief is filed, “the [G]overnment is free to file
a responsive brief raising the waiver issue (if applicable) or
do nothing, allowing this court to perform the required Anders
review”).
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individualized assessment based on the particular facts of
Jennings’ case, because Jennings did not argue below for a
sentence outside of his Guidelines range, we review the error
for plain error. United States v. Lynn, 592 F.3d 572, 579-80
(4th Cir. 2010). Even if we assumed that the district court’s
lack of explanation of Jennings’ sentence constituted an obvious
error in violation of Carter, Fed. R. Crim. P. 52(b) requires
Jennings to also show that the district court’s lack of
explanation had a prejudicial effect on the sentence imposed.
See Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009).
We find Jennings has failed to make such a showing. We further
find Jennings’ sentence reasonable. See United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007) (recognizing this court
applies an appellate presumption of reasonableness to a within-
Guidelines sentence).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Jennings, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Jennings 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
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was served on Jennings. 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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