United States v. John Dugger , 499 F. App'x 259 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DEE DUGGER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:11-cr-00234-JAB-3)
Submitted: October 5, 2012 Decided: December 13, 2012
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Dee Dugger pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(A) (West 2006 & Supp. 2012) and 21 U.S.C.
§ 846 (2006). The district court calculated Dugger’s Guidelines
range under the U.S. Sentencing Guidelines Manual (“USSG”)
(2011) at 210 to 262 months’ imprisonment and, after granting a
downward variance, sentenced him to 157 months’ imprisonment.
On appeal, Dugger’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court abused its discretion in imposing sentence.
Dugger was advised of his right to file a pro se supplemental
brief, but he has not done so. The Government declined to file
a brief. We affirm.
This court reviews Dugger’s sentence for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
Id. at 51. In determining procedural reasonableness, this court
considers whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
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opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
clearly erroneous facts, or failed to explain sufficiently the
selected sentence. Id. at 49-51. “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)
(internal quotation marks omitted). The court, however, need
not “provide a lengthy explanation or robotically tick through
§ 3553(a)’s every subsection, particularly when imposing a
below-Guidelines sentence.” United States v. Chandia, 675 F.3d
329, 341 (4th Cir. 2012) (internal quotation marks and
alteration omitted), petition for cert. filed, ___ U.S.L.W. ___
(U.S. July 3, 2012) (No. 12-5093).
In this case, the district court correctly calculated
and considered as advisory the Guidelines range, heard argument
from Dugger’s counsel and allocution from Dugger, and gave
counsel for the Government the opportunity to argue. Assuming
without deciding that the court committed a plain procedural
error in failing to provide a sufficiently individualized
explanation for the sentence it imposed, we conclude that such
error did not affect Dugger’s substantial rights because there
is no indication from the record that, absent the error, he
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would have received a lower sentence. See United States v.
Hernandez, 603 F.3d 267, 273 (4th Cir. 2010) (explaining that,
in the sentencing context, a defendant meets his burden to show
that a plain sentencing error affected his substantial rights by
showing that, “absent the error, a different sentence might have
been imposed”).
If a sentence is procedurally reasonable, this court
then considers it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” Gall, 552 U.S. at
51. We reject as without merit counsel’s argument that Dugger’s
sentence is substantively unreasonable. The argument, in
essence, asks this court to substitute its judgment for that of
the district court. Even if this court may have weighed the
§ 3553(a) factors differently if we had resolved the case in the
first instance, we will defer to the district court’s decision
that a sentence of 157 months’ imprisonment achieved the
purposes of sentencing in Dugger’s case. Indeed, it appears
that the sentence imposed mirrors precisely the sentence for
which Dugger’s counsel advocated. See United States v. Jeffery,
631 F.3d 669, 679 (4th Cir.) (“[D]istrict courts have extremely
broad discretion when determining the weight to be given each of
the § 3553(a) factors.”), cert. denied, 132 S. Ct. 187 (2011).
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Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Dugger.
In accordance with Anders, we have reviewed the entire
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 Dugger, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Dugger 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 Dugger.
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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