United States v. Bobby Arnold ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY SAMUEL ARNOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:18-cr-00135-RJC-DCK-2)
Submitted: December 27, 2019 Decided: January 9, 2020
Before MOTZ, KEENAN, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, PLUMIDES, ROMANO, JOHNSON & CACHERIS, PC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Samuel Arnold appeals the 96-month sentence imposed following his guilty
plea, pursuant to a plea agreement, to conspiracy to distribute and to possess with intent to
distribute at least 28 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846 (2018), and to distribution and possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious
issues for appeal, but questioning whether the district court reversibly erred in calculating
Arnold’s criminal history. Arnold was informed of his right to file a pro se supplemental
brief, but he has not done so. The Government elected not to file a brief and does not seek
to enforce the appeal waiver in Arnold’s plea agreement. * We affirm.
We review Arnold’s sentence for reasonableness under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive reasonableness of the
sentence. Id. at 51. In determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory sentencing range under the
Sentencing Guidelines, gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2018) factors, and sufficiently explained the
*
Because the Government fails to assert the appeal waiver as a bar to this appeal,
we may consider the issues raised by counsel and conduct an independent review of the
record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007).
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selected sentence. Id. at 49-51. If there are no procedural errors, we then consider the
substantive reasonableness of the sentence, evaluating “the totality of the circumstances.”
Id. at 51. A sentence is presumptively reasonable if it is within the Guidelines range, and
this “presumption can only be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014).
Here, the record establishes that Arnold’s sentence is procedurally and substantively
reasonable. The district court properly calculated Arnold’s offense level, criminal history
category, and advisory Guidelines range. We find no merit to Arnold’s claim that the
district court erred in calculating the criminal history points for his probation revocation
sentences. The district court correctly applied U.S. Sentencing Guidelines Manual
§ 4A1.2(k) (2016), and Application Note 11 and counted Arnold’s probation revocation
sentences separately. We reject Arnold’s suggestion that Application Note 11 conflicts
with USSG § 4A1.2(a). See United States v. Muldrow, 844 F.3d 434, 441 (4th Cir 2016).
(“[T]his court rarely invalidates part of the commentary as inconsistent with the Guidelines
text.”). The court afforded the parties adequate opportunities to make arguments about an
appropriate sentence and heard argument from counsel and allocution from Arnold. After
properly considering these matters, Arnold’s advisory Guidelines range, and relevant
§ 3553(a) factors, the district court thoroughly explained its denial of Arnold’s request for
a downward variance and its reasons for imposing a within-Guidelines sentence. Arnold
provides no grounds to overcome the presumption of reasonableness of his sentence.
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In accordance with Anders, we have reviewed the entire record and have found no
meritorious issues for appeal. We therefore affirm the criminal judgment. This court
requires that counsel inform Arnold, in writing, of the right to petition the Supreme Court
of the United States for further review. If Arnold 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 Arnold. 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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