United States v. Michael Messer, Jr. , 546 F. App'x 192 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4379
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL BRUCE MESSER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:12-cr-00708-HMH-1)
Submitted: October 29, 2013 Decided: November 12, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Bruce Messer, Jr., appeals his conviction and
thirty-month sentence imposed following his guilty plea to
possession of a firearm and ammunition as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). On appeal, Messer’s
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 imposed a
procedurally unreasonable sentence by failing to adequately
explain the sentence imposed. Messer was notified of his right
to file a pro se supplemental brief but has not done so. The
Government has declined to file a response brief. Finding no
error, we affirm.
We review a sentence for reasonableness, applying a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court committed no significant procedural error, such
as improper calculation of the Guidelines range, insufficient
consideration of the 18 U.S.C. § 3553(a) (2006) factors and the
parties’ sentencing arguments, and inadequate explanation of the
sentence imposed. United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010).
In announcing a sentence, the court must conduct an
“individualized assessment justifying the sentence imposed and
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rejection of arguments for a higher or lower sentence based on
§ 3553.” Id. at 584 (internal quotation marks omitted). “Where
the defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence than that set forth in the
advisory Guidelines, a district judge should address the party’s
arguments and explain why he has rejected those arguments.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks omitted). The district court must
provide sufficient explanation to “demonstrate that it
‘considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.’”
Lynn, 592 F.3d at 576 (quoting Rita v. United States, 551 U.S.
338, 356 (2007)).
The explanation for a Guidelines sentence “need not be
elaborate or lengthy,” United States v. Johnson, 587 F.3d 625,
639 (4th Cir. 2009) (internal quotation marks omitted), and the
district court need not “robotically tick through § 3553(a)’s
every subsection, particularly when imposing a within-Guidelines
sentence.” United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (internal quotation marks omitted). A district court has
rendered an adequate explanation for a Guidelines sentence “when
the district court indicates that it is ‘rest[ing] [its]
decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence (in terms of § 3553(a) and other
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congressional mandates) in the typical case, and that the judge
has found that the case before him is typical.’” United
States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (quoting
Rita, 551 U.S. at 357). Additionally, “[t]he context
surrounding a district court’s explanation may imbue it with
enough content for us to evaluate both whether the court
considered the § 3553(a) factors and whether it did so
properly.” United States v. Montes-Pineda, 445 F.3d 375, 381
(4th Cir. 2006).
We have thoroughly reviewed the record and conclude
that the district court’s explanation, while brief, was legally
adequate to support its decision to reject Messer’s request for
a downward variance and sustain the within-Guidelines sentence
it ultimately imposed. See Rita, 551 U.S. at 359 (“Where a
matter is as conceptually simple as in the case at hand and 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.”); Hernandez, 603 F.3d at
270-73 (finding explanation nearly identical to that supporting
Messer’s sentence adequate under Rita).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Messer’s conviction and sentence. This
court requires that counsel inform Messer, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Messer 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 Messer.
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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