United States v. Guntharp , 420 F. App'x 254 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4595
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN GUNTHARP,
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. (1:08-cr-00149-NCT-1)
Submitted: March 31, 2011 Decided: April 4, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael A. DeFranco, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Guntharp pled guilty to possession of child
pornography. The district court sentenced him to 48 months’
imprisonment. On appeal, Guntharp’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in counsel’s view, there are no meritorious issues
for appeal, but questioning whether the guilty plea was knowing
and voluntary and whether the district court abused its
discretion by imposing Guntharp’s sentence. Guntharp filed a
pro se supplemental brief reiterating counsel’s arguments and
asserting that he should receive credit toward his sentence for
time spent on home confinement. Finding no reversible error, we
affirm.
In the absence of a motion to withdraw a guilty plea,
this court reviews the adequacy of the guilty plea pursuant to
Fed. R. Crim. P. 11 for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the
transcript of the plea hearing leads us to conclude that the
district court fully complied with Rule 11 in accepting
Guntharp’s guilty plea. See United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991). Accordingly, we affirm
Guntharp’s conviction.
We have reviewed Guntharp’s sentence and conclude that
it was properly calculated and is reasonable. See Gall v.
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United States, 552 U.S. 38, 51 (2007); United States v. Llamas,
599 F.3d 381, 387 (4th Cir. 2010). The district court followed
the necessary procedural steps in sentencing Guntharp,
appropriately treated the sentencing guidelines as advisory,
properly calculated and considered the applicable guidelines
range, and weighed the relevant 18 U.S.C. § 3553(a) (2006)
factors in relation to Guntharp’s criminal conduct and his
individual circumstances. The district court specifically
considered the testimony of the expert witnesses that Guntharp
could be treated in the community, but questioned Guntharp’s
motivation to pursue treatment and found that Guntharp had not
pursued the treatment plan he initially proposed. The court
also emphasized the need to protect the public from such
offenses and determined that a term of imprisonment was needed.
However, the court did impose a variance sentence of 48 months,
down from the 78 to 97 month advisory guidelines range. We
conclude that the district court did not abuse its discretion in
imposing the downward variance sentence of 48 months. See Gall,
552 U.S. at 41; United States v. Engle, 592 F.3d 495, 500
(4th Cir.) (holding that “due deference” is given to the
district court’s decision to impose variance sentence), cert.
denied, 131 S. Ct. 165 (2010).
Guntharp, in his pro se brief, argues that the court
failed to credit the testimony of the expert witnesses as to the
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propriety of community treatment for Guntharp and he argues that
he should receive credit toward his sentence for time spent on
home confinement. As addressed above, the court did consider
the testimony as to the possibility of allowing Guntharp to
obtain community treatment. In reliance on this testimony, the
district court allowed Guntharp to remain on home confinement
for an extended time prior to service of his sentence. However,
upon consideration of all the sentencing factors, the court
reasoned that a term of incarceration was warranted for
Guntharp’s offense. Contrary to Guntharp’s claim, his time
spent on house arrest with electronic monitoring does not
constitute time served in “official detention” under 18 U.S.C.
§ 3585(b) (2006). See Randall v. Whelan, 938 F.2d 522, 524 (4th
Cir. 1991); United States v. Insley, 927 F.2d 185, 186 (4th Cir.
1991). Thus, no credit for this time is warranted.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Guntharp’s conviction and sentence.
This court requires that counsel inform Guntharp, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Guntharp 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 Guntharp. 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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