United States v. Sherman Gay , 672 F. App'x 321 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4269
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHERMAN CARNELL GAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:14-cr-00246-FL-1)
Submitted: December 16, 2016 Decided: January 10, 2017
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Jennifer C. Leisten,
Research & Writing Attorney, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Jennifer P.
May-Parker, Barbara D. Kocher, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherman Carnell Gay pled guilty to possession with intent to
distribute a quantity of cocaine, cocaine base, and marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). Gay’s
Sentencing Guidelines range calculations included a two-level
enhancement for possessing a firearm in connection with the
offense. In sentencing Gay to a 151-month term of imprisonment,
at the low end of the Guidelines range, the district court
overruled Gay’s objection to the firearm enhancement and denied
his request for a below-Guidelines-range term. Gay now appeals,
contending that his sentence is procedurally and substantively
unreasonable. We disagree.
We review the reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 41, 51 (2007). Procedural errors include the district
court’s “fail[ure] to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines
range.” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks omitted). Although the court need not
“robotically tick through § 3553(a)’s every subsection,” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it “must
adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing,”
Gall, 552 U.S. at 50. Even if the court imposes a within-
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Guidelines-range sentence, “it must place on the record an
individualized assessment based on the particular facts of the
case before it.” Carter, 564 F.3d at 330 (internal quotation marks
omitted).
“Where the defendant or prosecutor presents nonfrivolous
reasons for imposing a different sentence than that set forth in
the advisory Guidelines, a district [court] should address the
party’s arguments and explain why [it] has rejected those
arguments.” Id. at 328 (internal quotation marks omitted). While
“[t]he context surrounding a district court’s explanation may
imbue it with enough content for us to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly,” United States v. Montes-Pineda, 445 F.3d 375, 381 (4th
Cir. 2006), we “may not guess at the district court’s rationale,
searching the record for statements by the Government or defense
counsel or for any other clues that might explain a sentence,”
Carter, 564 F.3d at 329-30.
Only if there are no significant procedural errors does this
court consider the substantive reasonableness of the sentence,
taking into account “the totality of the circumstances.” Gall,
552 U.S. at 51. A sentence within a properly calculated Guidelines
range is presumptively substantively reasonable, rebuttable only
by showing that the sentence is unreasonable when measured against
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the § 3553(a) factors. United States v. Louthian, 756 F.3d 295,
306 (4th Cir. 2014).
Our review of the record reveals that the district court
properly applied the two-level firearm enhancement, considered and
rejected Gay’s arguments for a below-Guidelines-range sentence,
and sufficiently considered and explained the relevant § 3553(a)
sentencing factors in fashioning the chosen sentence. Thus, we
conclude that the sentence imposed was procedurally reasonable.
Additionally, we conclude that Gay has not made the showing
necessary to rebut the presumption that his within-Guidelines-
range sentence is substantively reasonable. Accordingly, we
affirm the judgment of the district court. 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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