United States v. Darrith Beall , 532 F. App'x 356 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRITH LAVON BEALL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00900-PMD-1)
Submitted: June 17, 2013 Decided: July 9, 2013
Before AGEE, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrith Lavon Beall pled guilty to possession with
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2013),
and was sentenced to 151 months’ imprisonment. The district
court later construed Beall’s 18 U.S.C. § 3582(c)(2) (2006)
motion for reduction of sentence as a 28 U.S.C.A. § 2255(West Supp. 2013) motion, calculated his Guidelines range under
the U.S. Sentencing Guidelines Manual (2011) at 151 to 188
months’ imprisonment, granted Beall § 2255 relief, and, after
imposing a downward variance, sentenced him to 139 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there are no
meritorious issues for appeal, but questioning whether the
139-month sentence is reasonable. Beall was informed of his
right to file a pro se supplemental brief, but he has not done
so. The Government declined to file a responsive brief. *
We affirm.
We review the 139-month sentence for reasonableness
under a “deferential abuse-of-discretion standard.” Gall v.
*
We note that the Government also did not file a
cross-appeal to challenge the lawfulness of the district court’s
decision to impose the 139-month sentence. Therefore, any
alleged error in this regard may not be addressed on appeal.
Greenlaw v. United States, 554 U.S. 237, 243-53 (2008).
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United States, 552 U.S. 38, 41, 51 (2007). This
abuse-of-discretion standard involves two steps; under the
first, we examine the sentence for significant procedural
errors, and under the second, we review the substance of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (examining Gall, 552 U.S. at 50-51). When the district
court imposes a variant sentence, we consider “whether
the . . . court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.”
United States v. Hernandez-Villanueva, 473 F.3d 118, 123
(4th Cir. 2007).
We conclude after review of the record that the
district court did not abuse its discretion in imposing the
139-month sentence. The court properly calculated Beall’s
Guidelines range and heard argument from counsel for both
parties and allocution from Beall. The court imposed the
139-month sentence after considering relevant sentencing factors
under 18 U.S.C. § 3553(a) (2006) and explaining that a downward
variance was warranted in light of Beall’s rehabilitation
efforts while incarcerated. Further, counsel does not
suggest - and review of the record does not reveal any basis for
concluding - that the sentence is substantively unreasonable.
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Additionally, in accordance with Anders, we have
reviewed the remainder of the record and have found no
meritorious issues for review. We therefore affirm the district
court’s amended judgment. This court requires that counsel
inform Beall, in writing, of the right to petition the Supreme
Court of the United States for further review. If Beall
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 Beall.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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