United States v. Thornsbury , 410 F. App'x 727 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4391
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KERNEY RAY THORNSBURY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:09-cr-00148-1)
Submitted: January 21, 2011 Decided: February 11, 2011
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John Lanier File, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Kerney Ray Thornsbury
pleaded guilty to possession of ammunition by a felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). The
district court sentenced Thornsbury to thirty-three months’
imprisonment.
Thornsbury’s attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious grounds for appeal, but asking
this court to review the reasonableness of Thornsbury’s
sentence. * For the reasons that follow, we affirm.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
*
Although advised of his right to do so, Thornsbury has not
filed a pro se supplemental brief.
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sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). This court
next assesses the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 552 U.S. at 51).
On appeal, Thornsbury maintains that, given the
particular facts of this case, a thirty-three-month term of
imprisonment is greater than necessary to fulfill the purposes
of sentencing and thus constitutes an abuse of discretion. We
disagree. The district court considered defense counsel’s
arguments for a downward variance, but ultimately found them
unavailing. Based on our review of the record, we cannot say
that decision is unreasonable. See United States v. McNeill,
598 F.3d 161, 166 (4th Cir. 2010) (explaining that this court
will not reverse a sentence unless it is unreasonable, “even if
the sentence would not have been the choice of the appellate
court”), cert. granted, __ S. Ct. __, 2011 WL 48124 (U.S. Jan.
7, 2011) (No. 10-5258).
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Having denied counsel’s motion for a downward
departure, the district court sentenced Thornsbury to thirty-
three months in prison, a sentence at the high end of his
properly calculated Guidelines range. In setting forth the
reasons for this sentence, the district court relied on the
relevant § 3553(a) sentencing factors that informed its decision
and offered a detailed and individualized explanation for the
sentence. See United States v. Lynn, 592 F.3d 572, 576 (4th
Cir. 2010). For these reasons, we hold that Thornsbury’s
sentence is procedurally reasonable. Further, we also afford
Thornsbury’s within-Guidelines sentence a presumption of
substantive reasonableness. See United States v. Wright, 594
F.3d 259, 267 (4th Cir.), cert. denied, 131 S. Ct. 507 (2010);
see also Rita v. United States, 551 U.S. 338, 347 (2007)
(upholding rebuttable presumption of reasonableness for within-
Guidelines sentence).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. The
district court complied with the mandates of Federal Rule of
Criminal Procedure 11 in accepting Thornsbury’s guilty plea.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
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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 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
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