United States v. Kettle , 365 F. App'x 474 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMION KETTLE, a/k/a Chris White,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00208-HEH-6)
Submitted: December 16, 2009 Decided: February 16, 2010
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barbara L. Hartung, Richmond, Virginia, for Appellant. Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damion Kettle appeals his eighty-seven month sentence
for conspiracy to distribute and possess with intent to
distribute marijuana, in violation of 21 U.S.C. §§ 841(a), 846
(2006). Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court’s sentence was substantively unreasonable,
but concluding there are no meritorious grounds for appeal.
Additionally, Kettle filed a pro se supplemental brief. We
affirm.
We review a 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, we first assess whether the district court properly
calculated the defendant’s advisory guideline range. See Gall,
552 U.S. at 49, 51. We then consider whether the district court
failed to consider the 18 U.S.C. § 3553(a) (2006) factors and
any arguments presented by the parties, selected a sentence
based on “clearly erroneous facts,” or failed to sufficiently
explain the selected sentence. See id. at 49-50, 51. When
imposing a sentence, the district court “‘must make an
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individualized assessment based on the facts presented.’”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 50) (emphasis omitted).
Finally, we review the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). When reviewing
the district court’s application of the sentencing guidelines,
we review findings of fact for clear error and questions of law
de novo. United States v. Osborne, 514 F.3d 377, 387 (4th
Cir.), cert. denied, 128 S. Ct. 2525 (2008). We afford a
sentence within the properly calculated guideline range a
presumption of reasonableness. United States v. Green, 436 F.3d
449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S.
338, 341, 347 (2007).
Kettle raises two challenges to the procedural
reasonableness of his sentence. Kettle first challenges on two
grounds the district court’s application of a two offense level
enhancement for possession of a firearm, pursuant to United
States Sentencing Commission, Guidelines Manual, (“USSG”)
§ 2D1.1(b)(1). First, Kettle asserts that this enhancement was
improper because he was never indicted for possession of a
firearm during the commission of a crime, and the Government
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failed to prove this allegation. Alternatively, Kettle contends
that the Government failed to demonstrate that he actively
employed the weapon during the commission of the offense.
Because Kettle’s two alternative arguments against application
of a firearms enhancement are made for the first time on appeal,
our review is for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).
A two-level increase is authorized under § 2D1.1(b)(1)
if the defendant possessed a dangerous weapon during the
offense. Application Note 3 to § 2D1.1 explains that the
enhancement “should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” The Government “need show only that the weapon was
possessed during the relevant illegal drug activity.” United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).
Here, it is clear that the district court did not err
in enhancing Kettle’s offense level for possession of a firearm.
The statement of facts, to which Kettle agreed, describes that a
firearm was found in Kettle’s residence during a search
following a controlled delivery of marijuana to Kettle by
narcotics agents in 2006. Thus, because the firearm was present
during the relevant illegal activity, the enhancement was
proper, and Kettle’s claims are without merit.
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Additionally, Kettle asserts that the district court
erred in improperly considering the possibility of the
Government’s future filing of a motion for a substantial
assistance reduction. Kettle bases this claim on the following
exchange between the district judge and the Government, which
occurred immediately after the Government gave its argument
regarding sentencing: “THE COURT: Does it appear that there is
a likely prospect that Mr. Kettle will be back before the Court
for reconsideration of a sentence at a later time? MS.
MASTANDREA-MILLER: Yes, sir, I believe so.”
There is at least some authority to support Kettle’s
contention that it would be inappropriate for a judge to
consider the likelihood of a defendant’s future cooperation when
determining a sentence. See United States v. Barnette, 427 F.3d
259, 262 (4th Cir. 2005) (“A sentencing court cannot allow ‘the
prospect of Rule 35(b) relief in the future’ to influence or
alter its decision on a motion for a downward departure under
[USSG] § 5K1.1.”). Though this is an issue of first impression
before us, the Sixth Circuit has held that “sentencing courts
cannot consider the potential for a future sentence reduction in
imposing sentence.” United States v. Recla, 560 F.3d 539, 545
(6th Cir. 2009). However, because this objection was not raised
before the district court, our review is for plain error on
appeal. See Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 731-32.
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Here, Kettle is unable to demonstrate plain error.
The district court merely raised the question of whether Kettle
would likely be back before the court for a future
reconsideration of his sentence. There is no evidence, however,
that the judge actually based the sentence upon this
consideration. Indeed, the record reflects that the district
judge made an individualized assessment of the proper sentence,
applying the appropriate 18 U.S.C. § 3553(a) factors in
determining Kettle’s sentence. Accordingly, we find that the
district court did not commit procedural error in determining
Kettle’s sentence.
Next, Kettle’s counsel challenges the substantive
reasonableness of Kettle’s sentence. Kettle’s counsel argues
that the district court acted unreasonably in imposing a
sentence at the highest end of the advisory guidelines range, in
light of the fact that it was drastically in excess of any prior
sentence that Kettle had received and was unnecessarily long to
deter future criminal conduct. However, this contention is
without merit. Under Rita, this court affords a sentence within
a properly calculated guideline range a presumption of
reasonableness. 551 U.S. at 347; see Green, 436 F.3d at 457.
Kettle’s counsel does not disclaim that his advisory guideline
range was properly calculated by the district court.
Additionally, Kettle’s counsel concedes that Kettle was
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sentenced within this range. Finally, Kettle provides no basis
for rebuttal of the presumption. Accordingly, the district
court did not abuse its discretion in sentencing Kettle to
eighty-seven months’ imprisonment.
Kettle raises two other issues in his pro se
supplemental brief. First, Kettle contends that his guilty plea
was involuntary, as he did not understand the nature of the
charge against him. The record, however, reflects that the
magistrate judge conducted a thorough plea colloquy, wholly in
compliance with Federal Rule of Criminal Procedure 11. During
the colloquy, the magistrate judge explained the nature of the
charge against Kettle, and Kettle affirmed that he understood
the charge. The judge later questioned whether Kettle
understood the pending charge against him, and Kettle again
affirmed that he did. Accordingly, as a defendant is bound by
his prior sworn statements in the absence of clear and
convincing evidence to the contrary, we find that this issue is
without merit. See Blackledge v. Allison, 431 U.S. 63, 73-74
(1977); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir.
2005) (courts can rely on statements made in open court at
subsequent collateral proceedings).
Finally, Kettle contends that his attorney failed to
make a reasonable effort to explain to Kettle the meaning of the
Anders brief and notice, in violation of United States v.
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Santiago, 495 F.3d 27, 30 (2d Cir. 2007). In Santiago, the
Second Circuit held that, where a defendant may be illiterate,
Anders notice documents alone are insufficient to apprise the
defendant of the substance of the Anders brief and the
defendant’s right to oppose it, without some additional effort
“to ensure that their contents are communicated to the defendant
orally.” Id. Nevertheless, as Kettle is literate and filed a
pro se brief in response to his counsel’s Anders brief and
notice, Santiago is inapplicable and this issue is without
merit.
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 Kettle, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Kettle 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
was served on Kettle.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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