United States v. Ussery , 377 F. App'x 324 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4274
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COOLIDGE KENTAY USSERY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00059-LHT-5)
Submitted: March 30, 2010 Decided: May 7, 2010
Before NIEMEYER, MICHAEL, 1 and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICES OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Amy E. Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
1
Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Coolidge Kentay Ussery pled guilty, pursuant to a plea
agreement, to conspiracy to distribute cocaine base, in
violation of 21 U.S.C. §§ 841, 846 (2006). Though Ussery
originally faced a mandatory sentence of life imprisonment due
to his prior felony drug convictions, the district court granted
the Government’s substantial assistance motion under U.S.
Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2008) and
sentenced Ussery to 262 months’ imprisonment, the low end of the
otherwise applicable guidelines range. After granting a Fed. R.
Crim. P. 35 motion for substantial assistance, the district
court reduced Ussery’s sentence to 228 months.
Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
Ussery’s sentence was substantively unreasonable, but contending
there are no meritorious issues on appeal. Ussery was advised
of his right to file a pro se supplemental brief and did not do
so. The Government elected not to file a brief and does not
seek to enforce the plea agreement’s appeal waiver. 2 We affirm.
2
Ussery waived his right to appeal his sentence in the plea
agreement. Because the Government fails to assert the waiver as
a bar to the appeal, however, we may consider the issue raised
in the Anders brief and conduct an Anders review. See United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
3
“Regardless of whether the sentence imposed is inside
or outside the [g]uidelines range, the appellate court must
review the sentence under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). We are charged
with reviewing sentences for both procedural and substantive
reasonableness. Id.
In determining procedural reasonableness, we first
assess whether the district court properly calculated the
defendant’s advisory guidelines range. Gall, 552 U.S. at 49-50.
We then determine whether the district court failed to consider
the 18 U.S.C. § 3553(a) (2006) factors and any arguments
presented by the parties, treated the guidelines as mandatory,
selected a sentence based on “clearly erroneous facts,” or
failed to sufficiently explain the selected sentence. Id. at
51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
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
[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,
552 U.S. at 51).
Here, though it correctly calculated Ussery’s advisory
guidelines range, the district court failed to adequately
explain Ussery’s sentence. Though not raised by Ussery, we
recently held, in United States v. Carter, 564 F.3d 325 (4th
4
Cir. 2009), that a district court must conduct an
“individualized assessment” of the particular facts of every
sentence, whether the court imposes a sentence above, below, or
within the guidelines range. Id. at 330. Here, the district
court summarized its reasons for Ussery’s sentence as follows:
Pursuant to the Sentencing Reform Act of 1984 and
United States v. Booker, it is the judgment of the
Court, having considered the factors noted in 18
U.S.C. § 3553(a), that the defendant, Coolidge Kentay
Ussery, is hereby committed to the custody of the U.S.
Bureau of Prisons to be imprisoned for a term of 262
months.
The district court failed to provide any reasons why a
guidelines sentence was appropriate for Ussery or why it chose
to sentence him at the low end of the advisory guidelines range.
Therefore, it is clear that the district court failed to provide
on the record the individualized assessment required by Carter.
However, Ussery did not object to the adequacy of the
district court’s explanation in the district court. Where a
defendant does not object to a district court’s failure to
explain an imposed sentence, our review is for plain error. See
United States v. Lynn, ___ F.3d ___, ___, 2010 WL 322176, at *3
(4th Cir. 2010). Under plain error review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
5
integrity, or public reputation of judicial
proceedings.
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)
(internal quotation marks, citations, and alterations omitted).
In the sentencing context, an error affects substantial rights
if the defendant can show that the sentence imposed “was longer
than that to which he would otherwise be subject.” United
States v. Washington, 404 F.3d 834, 849 (4th Cir. 2005)
(internal quotation marks and citation omitted).
Though the district court committed error, and the
error was plain, we find that the error did not affect Ussery’s
substantial rights. Ussery was sentenced at the low end of the
guideline range after the district court granted the
Government’s U.S. Sentencing Guidelines Manual § 5K1.1 (2008)
motion based on Ussery’s substantial assistance. This sentence
was recommended by both the Government and Ussery’s counsel
during their arguments during sentencing. Finally, Ussery’s
sentence was further reduced following the Government’s Fed. R.
Crim. P. 35 motion. Because Ussery cannot demonstrate that he
would have received a lesser sentence had the district court
adequately explained its reasoning, we find that the district
court’s inadequate explanation did not affect Ussery’s
substantial rights.
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Additionally, we find that Ussery’s sentence is
substantively reasonable. Ussery originally faced a mandatory
term of life imprisonment. However, after two substantial
assistance motions by the Government, Ussery received a sentence
of 228 months’ imprisonment — almost three years less than the
recommended guidelines range. Therefore, it is clear his
sentence is reasonable.
In accordance with Anders, we have examined the entire
record, including the integrity of the Rule 11 hearing, and have
found no meritorious issues for appeal. Accordingly, we affirm
the district court’s judgment. This court requires that counsel
inform Ussery, in writing, of the right to petition the Supreme
Court of the United States for further review. If Ussery
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 Ussery. We
dispense with oral argument because the facts and legal
contentions are adequately expressed in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7