United States v. Bobo , 383 F. App'x 368 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4386
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN O. BOBO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:08-cr-01012-GRA-1)
Submitted: May 17, 2010 Decided: June 18, 2010
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. William Corley
Lucius, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian O. Bobo appeals the sentence of thirty-seven
months’ imprisonment and three years of supervised release
imposed following his guilty plea to conspiracy to defraud the
United States, in violation of 18 U.S.C. § 286 (2006).
Appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the
district court erred in sentencing Bobo to three years of
supervised release, but concluding that there are no meritorious
grounds for appeal. Bobo did not file a pro se supplemental
brief and the Government elected not to file a brief. We
previously placed this case in abeyance pending the outcome of
United States v. Peake, No. 08-5132. As our mandate has now
issued in Peake, this case has been removed from abeyance, and
is ripe for review.
“Regardless of whether the sentence imposed is inside
or outside the Guidelines range, the appellate court must review
the sentence under an abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 51 (2007). Appellate courts 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
2
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
Guidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall, 552
U.S. at 51).
We afford sentences that fall within the properly
calculated guidelines range a presumption of reasonableness.
See Gall, 552 U.S. at 51. This presumption can be rebutted only
by showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted).
Though Bobo’s counsel assigns error to the district
court’s imposition of three years of supervised release, we note
that Bobo’s entire sentence is procedurally unreasonable, as the
district court failed to adequately explain it. We recently
3
held, in United States v. Carter, 564 F.3d 325 (4th Cir. 2009),
that a district court must conduct an “individualized
assessment” of the particular facts of every sentence on the
record, whether the court imposes a sentence above, below, or
within the guidelines range. Id. at 330. Here, the district
court summarized its reasons for Bobo’s sentence as follows:
After having considered the Sentencing Reform Act of
1984, and the advisory nature of the sentencing
guidelines, and the discretionary nature of the
sentencing factors in 18 U.S.C. § 3553(a), it is the
sentence of this court that you, Brian O. Bobo, are
hereby committed to the custody of the Bureau of
Prisons for a term of 37 months.
The district court failed to provide any reasons why a
guidelines sentence was appropriate for Bobo or why it chose to
sentence him at the low end of the advisory guideline range.
Therefore, it is clear that the district court failed to provide
an individualized assessment as required by Carter.
However, Bobo 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, or otherwise preserve the issue for
review by requesting a sentence shorter than the one he
received, this court’s review is for plain error. See United
States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010). Under
plain error review,
4
an 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,
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).
The district court sentenced Bobo before we issued
Carter, and thus without the benefit of that opinion. Even if
we were to deem the district court’s error plain, however, it
did not affect Bobo’s substantial rights. Bobo’s attorney
requested a prison sentence of thirty-seven months, which fell
at the bottom of the guideline range. The district court
acquiesced, and imposed a period of incarceration of thirty-
seven months. Accordingly, because Bobo cannot show that the
district court’s failure to provide an individualized assessment
on the record resulted in a longer sentence than would otherwise
5
have been imposed, the error did not affect his substantial
rights, and is therefore not cognizable on appeal.
Bobo’s attorney’s substantive claim, that the district
court erred in sentencing him to three years of supervised
release, is equally unavailing. As Bobo’s offense of conviction
was a Class C felony, see 18 U.S.C. § 3581(b)(3) (2006), the
guidelines recommend a term of supervised release of at least
two but not more than three years. United States Sentencing
Guidelines Manual § 5D1.2(a)(2). Because Bobo’s sentence of
three years of supervised release following his active prison
term fell within that range, we afford it a presumption of
reasonableness. As Bobo is unable to show that the sentence is
unreasonable when measured against the § 3553(a) factors, this
claim is without merit.
We have reviewed the entire record in accordance with
Anders and have not identified any meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires counsel to inform Bobo, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests such petition be
filed, but counsel believes that doing so would be frivolous,
counsel may move this court to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
6
on the client. 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
7