United States v. Glanton , 415 F. App'x 492 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4516
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENENISKI JERALD GLANTON, a/k/a Jerald, a/k/a Gerald,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:08-cr-00729-MBS-2)
Submitted: December 23, 2010 Decided: January 14, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. Stanley Duane Ragsdale, John David
Rowell, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keneniski Jerald Glanton appeals the 200-month
sentence imposed following his guilty plea to one count of
conspiracy to possess with intent to distribute and to
distribute fifty grams or more of cocaine base, in violation of
21 U.S.C.A §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2010).
Counsel for Glanton filed a brief in this court in accordance
with Anders v. California, 386 U.S. 738 (1967), certifying that
there are no non-frivolous issues for appeal, but questioning
whether the district court imposed an unreasonable sentence.
Glanton has filed a pro se supplemental brief, arguing that he
should be resentenced under the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372, that his sentence is
unreasonable and unconstitutional, and that counsel rendered
ineffective assistance. We affirm.
Counsel challenges Glanton’s sentence, but does not
specify any deficiencies. We review a sentence imposed by a
district court under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010). We begin by
reviewing the sentence for significant procedural error,
including such errors as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a)
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[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence — including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51. If there are no
procedural errors, we then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. United States v. Mendoza-Mendoza,
597 F.3d 212, 216 (4th Cir. 2010).
“When rendering a sentence, the district court ‘must
make an individualized assessment based on the facts
presented.’” United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009) (quoting Gall, 552 U.S. at 50) (emphasis omitted).
Accordingly, a sentencing court must apply the relevant
§ 3553(a) factors to the particular facts presented and must
“‘state in open court’” the particular reasons that support its
chosen sentence. Id. (quoting 18 U.S.C.A. § 3553(c) (West 2000
& Supp. 2010)). The court’s explanation need not be exhaustive;
it must be “sufficient ‘to satisfy the appellate court that the
district court has considered the parties’ arguments and has a
reasoned basis for exercising its own legal decisionmaking
authority.’” United States v. Boulware, 604 F.3d 832, 837 (4th
Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356
(2007)) (alterations omitted).
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We conclude that the sentence imposed by the district
court was both procedurally and substantively reasonable. The
district court calculated the Guidelines range and understood
that it was advisory. Furthermore, it is apparent that the
court considered the arguments of the parties and had a reasoned
basis for its decision. The court made an individualized
statement explaining the sentence imposed. Thus, the district
court did not commit procedural error during sentencing.
Glanton’s sentence is also substantively reasonable.
In reviewing a sentence outside the Guidelines range, we “‘give
due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the
variance.’” United States v. Morace, 594 F.3d 340 (4th Cir.)
(quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct. 307(2010). Here, the district court’s variant sentence is
supported by the Government’s motion to depart from the
Guidelines under 18 U.S.C. § 3553(e) (2006) and U.S. Sentencing
Guidelines Manual § 5K1.1 (2008). We conclude that the court
imposed a reasonable sentence under the circumstances. We
reject the claims raised in Glanton’s pro se supplemental brief
as meritless. *
*
The Fair Sentencing Act, which increased the amounts of
crack cocaine that trigger statutory mandatory minimum sentences
in 21 U.S.C. § 841(b) (West 1999 & Supp. 2010), is not
(Continued)
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In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Glanton, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Glanton 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 Glanton. 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
retroactive and is therefore inapplicable to Glanton’s sentence.
See United States v. Diaz, ___ F.3d ___, 2010 WL 5094222, at *1
(2d Cir. 2010); United States v. Brewer, 624 F.3d 900, 909 n.7
(8th Cir. 2010); United States v. Bell, 624 F.3d 803, 814 (7th
Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th
Cir. 2010); United States v. Carradine, 621 F.3d 575, 580 (6th
Cir. 2010).
Further, ineffective assistance of counsel claims are not
cognizable on direct appeal unless it conclusively appears on
the record that defense counsel was ineffective. United States
v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because the
record here does not conclusively demonstrate that Glanton’s
counsel provided ineffective assistance, Glanton must pursue
this claim, should he wish to do so, in an appropriate
proceeding for post-conviction relief.
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