United States v. Artist , 381 F. App'x 276 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4746
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE LEE ARTIST,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:03-cr-00106-H-2)
Submitted: May 18, 2010 Decided: June 4, 2010
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
John Stuart Bruce, First Assistant United States Attorney,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Lee Artist appeals from his twenty-one month
sentence imposed upon the revocation of his supervised release.
On appeal, Artist asserts that his sentence is both procedurally
and substantively plainly unreasonable. Specifically, he
contends that the district court failed to consider the
statutory sentencing factors in choosing to impose a consecutive
sentence, failed to provide reasoning for choosing the specific
sentence, and essentially treated the Guidelines as mandatory.
In addition, Artist asserts that his state sentence adequately
addressed the relevant sentencing factors and was sufficient
punishment. We affirm.
We review a sentence imposed as a result of a
supervised release violation to determine whether the sentence
is plainly unreasonable. United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). The first step in this analysis is a
determination of whether the sentence is unreasonable. Id. at
438. In determining reasonableness, we follow generally the
procedural and substantive considerations employed in reviewing
original sentences. Id. However, “[t]his initial inquiry takes
a more ‘deferential appellate posture concerning issues of fact
and the exercise of discretion’ than reasonableness review for
guidelines sentences.” United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438).
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When imposing sentence, 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. United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009). While “[t]his individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case at hand and
adequate to permit meaningful appellate review.” Id. (internal
quotation marks and citation omitted). In addition, “[w]here
[the parties] present[] nonfrivolous reasons for imposing a
. . . sentence [outside the advisory guidelines range,] . . . a
district judge should address the party’s arguments and explain
why he has rejected those arguments.” Id. at 328 (internal
quotation marks and citation omitted). An appellate court may
not guess at a district court’s sentencing rationale. Id. at
329-30; see also United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010) (applying Carter to revocation hearings, but
noting that “[a] court need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a
post-conviction sentence . . . .”).
Here, even assuming that the district court’s
consideration of Artist’s arguments and explanation of the
sentence imposed was insufficient, we review the issue for plain
error. Although Artist and his counsel spoke extensively about
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his background and circumstances at sentencing, they failed to
request a sentence different than the one imposed. Artist did
not request a sentence lower than the Guidelines range or a
sentence concurrent with his state sentence. Accordingly,
Artist did not preserve his objection to the adequacy of the
explanation of the sentence and, therefore, his procedural
claims are reviewed for plain error. See United States v. Lynn,
592 F.3d 572, 580 (4th Cir. 2010).
“To establish plain error, [Artist] must show that an
error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Moreover, even if Artist
satisfies these requirements, “correction of the error remains
within [the court’s] discretion, which [the court] should not
exercise . . . unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
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); see
also United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)
(“In the sentencing context, an error was prejudicial only if
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there is a reasonable probability that the defendant would have
received a lighter sentence but for the error.”).
Here, Artist fails to assert on appeal that he would
have received a lesser sentence had the court addressed his
arguments in pronouncing the sentence. Artist was sentenced at
the low end of the advisory Guidelines range, based on several
supervised release violations occurring over the course of
several months. Additionally, the motion for revocation noted
that Artist had violated his supervised release as early as five
days after he was released from prison and continued to do so
throughout his supervision period. Therefore, we conclude that
Artist has not demonstrated that the court’s failure to
specifically address his arguments and articulate its reasoning
affected his substantial rights. As such, there was no plain
error arising from any procedural irregularities.
As to the substantive reasonableness of the sentence,
Artist fails to rebut the presumption that his sentence is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007) (holding that sentence within a properly calculated
Guidelines range is reasonable). Artist was sentenced at the
bottom of his correctly calculated Guidelines range, even though
he had a history of repeated supervised release violations. The
court had discretion to impose a consecutive or a concurrent
sentence, see United States v. Contreras-Martinez, 409 F.3d
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1236, 1241 (10th Cir. 2005); its decision was rendered after
hearing argument from both parties; and the record does not
support Artist’s assertion that the district court applied the
Guidelines in a mandatory manner. Accordingly, we conclude that
substantively Artist’s sentence was not plainly unreasonable.
Based on the foregoing, we affirm Artist’s sentence.
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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