United States v. Kemph , 317 F. App'x 342 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4341
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM TIMOTHY KEMPH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:06-cr-00159-JBF-JEB-1)
Submitted: January 29, 2009 Decided: March 13, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jon M. Babineau, SAUNDERS BARLOW RIDDICK BABINEAU, PC, Suffolk,
Virginia, for Appellant. Sherrie Scott Capotosto, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Timothy Kemph pleaded guilty, without a
written plea agreement, to eight charges involving the
possession, distribution and manufacture of methamphetamine, and
one charge of possession of a firearm by a convicted felon.
Kemph was sentenced to 240 months’ imprisonment. The court also
ordered forfeiture of property belonging to Kemph, including two
vehicles, a camper/trailer, twenty-two acres of real property
located in Floyd County, Virginia, and a firearm. Appellate
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he asserts there are no meritorious
issues for appeal, but questions whether the district court
erred in determining that Kemp’s real and personal property were
subject to forfeiture 1 and whether the court abused its
discretion in imposing a sentence above the statutory mandatory
minimum term of ten years. Kemph was notified of the
opportunity to file a pro se supplemental brief, but has failed
to do so. 2 We affirm.
In a criminal forfeiture proceeding pursuant to 21
U.S.C. § 853 (2006), the Government must establish the elements
1
Kemph did not contest forfeiture of a firearm transferred
to an undercover agent as a part of a drug transaction.
2
The Government declined to file a responding brief.
2
of forfeiture by a preponderance of the evidence. United States
v. Tanner, 61 F.3d 231 (4th Cir. 1995). Property is subject to
forfeiture under § 853(a)(2) if it is “used, or intended to be
used, in any manner or part, to commit, or to facilitate the
commission of,” a violation of the Uniform Controlled Substances
Act.
We conclude that the Government established by a
preponderance of the evidence that Kemph used his vehicles and
his trailer to store and deliver drugs. The evidence also
established that Kemph partially paid for the real property with
drugs and stored drugs on the property. Accordingly, the
district court properly concluded that Kemph’s vehicles and real
property were used to facilitate methamphetamine distribution
and were, therefore, subject to forfeiture.
Turning to Kemph’s sentence, Kemph moved for a
downward departure based on U.S. Sentencing Guidelines Manual
(USSG) § 5H1.4 (2006), allowing departure on the basis of
“extraordinary physical impairment,” such as a “seriously infirm
defendant.” Kemph’s counsel cited his “significant” medical
issues, including asbestosis, glaucoma, chronic pulmonary lung
disease, and hypertension, and his psychiatric conditions.
Although the district court granted a downward departure and
imposed a sentence that was fifty-two months below the bottom of
the guideline range, Kemph contends that the court should have
3
further departed and sentenced him to ten years, the statutory
mandatory minimum sentence for the conspiracy count.
We review sentences for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 128 S. Ct.
586, 597 (2007); see also United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007). When imposing a sentence, a district court
must: (1) properly calculate the guideline range; (2) treat the
guidelines as advisory; (3) consider the factors set out in 18
U.S.C. § 3553(a) (West 2006); and (4) explain its reasons for
selecting a sentence. Pauley, 511 F.3d at 473. A sentence
within the properly calculated sentencing guidelines range is
presumed reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007); see also Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding application of rebuttable
presumption of correctness of within-guideline sentence).
In sentencing Kemph, the district court properly
determined that his advisory guideline sentencing range was 292
to 365 months, considered the relevant factors under § 3553(a),
and granted Kemph’s motion for a downward departure. The
court’s ruling on Kemph’s departure motion is not reviewable
unless the district court was under the mistaken impression that
it lacked the authority to depart. United States v. Brewer, 520
F.3d 367, 371 (4th Cir. 2008); see also United States v. Cooper,
437 F.3d 324, 333 (3d Cir. 2006). Here, as the district court
4
departed from the guideline range, it is obvious that the court
understood its authority to depart and Kemph’s claim regarding
the extent of the departure is not cognizable on appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Kemph’s convictions and sentence.
This court requires that counsel inform Kemph, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Kemph requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Kemph.
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
5