United States v. Rose , 387 F. App'x 375 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4828
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEVON TREMAINE ROSE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00011-RLV-DCK-1)
Submitted: June 24, 2010 Decided: July 8, 2010
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roderick G. Davis, THE LAW OFFICE OF RODERICK G. DAVIS, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Devon Tremaine
Rose pled guilty to conspiracy to possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C.
§ 846 (2006). The district court granted the Government’s
motion for a downward departure based on Rose’s substantial
assistance, U.S. Sentencing Guidelines Manual § 5K1.1 (2007),
and sentenced him to 144 months’ imprisonment. Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that, in his view, there are no meritorious
issues for appeal, but questioning whether the sentence imposed
was unreasonable when compared with the sentence imposed on a
similarly situated co-conspirator. Rose was advised of his
right to file a pro se supplemental brief, but he has not done
so. Finding no error, we affirm Rose’s conviction and sentence.
Initially, although not challenged by Rose, we find
that his guilty plea is valid. Rose consented to have his plea
taken by a magistrate judge. During the plea hearing, the
magistrate judge fully complied with the mandates of Fed. R.
Crim. P. 11 in accepting Rose’s guilty plea and ensured that
Rose entered his plea knowingly and voluntarily. Rose
stipulated to the existence of a factual basis and agreed that
the offense conduct in the presentence report could be relied
upon to establish a factual basis. Accordingly, we affirm
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Rose’s conviction. See United States v. DeFusco, 949 F.2d 114,
116, 119-20 (4th Cir. 1991).
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, this court must decide
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence. Lynn, 592
F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that, while the “individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review”). Properly
preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576. If the sentence is free
of significant procedural error, the appellate court reviews the
substantive reasonableness of the sentence. Id. at 575; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Rose argues that his sentence is procedurally
unreasonable because the district court did not consider
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§ 3553(a)(6) and the need to avoid unwarranted sentence
disparities among similarly situated defendants. Rose properly
preserved the issue by arguing in the district court for a
sentence below the advisory guideline range determined after
granting the Government’s § 5K1.1 motion. See Lynn, 592 F.3d at
577-78.
The court properly calculated the advisory guideline
range and appropriately granted the Government’s motion for a
downward departure based on Rose’s substantial assistance.
Although Rose sought an additional downward departure based on
the lower sentence received by a co-conspirator with a similar
criminal history, the court denied this request, noting that
“there is no disparity here to be recognized in that each case
has a plethora of facts to be considered.”
The district court is not required to “robotically
tick through § 3553(a)’s every subsection.” United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the
district court must “place on the record an individualized
assessment based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.”
Carter, 564 F.3d at 330 (internal quotation marks, footnote, and
citation omitted). This is true even when the district court
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sentences a defendant within the applicable guidelines range.
Id.Here, the district court explicitly considered Rose’s
sole argument for a downward variance—that his sentence resulted
in an unwarranted disparity between his sentence and that of a
similarly situated co-conspirator. The court found that no
disparity resulted and declined to impose a variance sentence on
this basis. We find that any error by the district court in
failing to provide a more explicit explanation for the 144-
month, within-guidelines sentence it imposed is harmless. See
Lynn, 592 F.3d at 582; see also Rita v. United States, 551 U.S.
338, 359 (2007) (“Where . . . the record makes clear that the
sentencing judge considered the evidence and arguments, we do
not believe the law requires the judge to write more
extensively.”). Accordingly, we affirm Rose’s sentence.
As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Rose’s conviction and sentence. 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
filed, but counsel believes that such a petition would be
frivolous, then counsel may renew his motion for leave to
withdraw from representation. Counsel’s motion must state that
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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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