United States v. Christopher Hill , 533 F. App'x 176 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4970
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER RON HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:10-cr-00081-WO-1)
Submitted: June 28, 2013 Decided: July 16, 2013
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan Leonard, LAW OFFICE OF JONATHAN LEONARD, Winston-Salem,
North Carolina, for Appellant. Clifton Thomas Barrett, Michael
Francis Joseph, Assistant United States Attorneys, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Hill appeals from the 144-month sentence
imposed by the district court after resentencing. Hill was
convicted after pleading guilty to possession with intent to
distribute cocaine base, in violation of 21 U.S.C.A.
§ 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2013). In his first
appeal, we affirmed the conviction but remanded for resentencing
without application of the career offender designation. Hill’s
counsel has filed an Anders v. California, 386 U.S. 738 (1967),
appeal stating that there are no meritorious issues, but
questioning whether the district court clearly erred in denying
a reduction for acceptance of responsibility and whether Hill’s
sentence is reasonable. The Government declined to file a brief
and Hill did not file a pro se supplemental brief. Finding no
error, we affirm.
Counsel for Hill questions whether the district court
should have granted a reduction for acceptance of responsibility
under U.S. Sentencing Guidelines Manual § 3E1.1 (2011). We
review the denial of the adjustment for clear error. United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). To receive
a reduction, the defendant must establish, “by a preponderance
of the evidence that he has clearly recognized and affirmatively
accepted personal responsibility for his criminal conduct.”
United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).
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Because the sentencing court “is in a unique position to
evaluate a defendant's acceptance of responsibility,” USSG
§ 3E1.1 comment. (n.5), this court affords great deference to
the district court’s determination. Dugger, 485 F.3d at 239.
The court stated at resentencing that Hill had shown
no remorse and had not accepted responsibility for his actions.
The court particularly noted Hill’s actions during the guilty
plea process and that he had attempted to withdraw his guilty
plea several times and had only testified truthfully at the very
end of his testimony at the hearing on the motion to withdraw
the guilty plea. In light of these circumstances, we conclude
that the district court did not clearly err in determining that
Hill was not entitled to an adjustment for acceptance of
responsibility.
Counsel also suggests that the court review the
sentence for reasonableness, but ultimately concludes that the
sentence is reasonable. We review a sentence imposed by a
district court under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 46 (2007); United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010) (abuse of discretion
standard of review applicable when defendant properly preserves
a claim of sentencing error in district court “[b]y drawing
arguments from [18 U.S.C.A.] § 3553 [(West 2000 & Supp. 2013)]
for a sentence different than the one ultimately imposed”). The
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appellate court must 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
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. If there are no procedural
errors, the appellate court then considers the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id.; United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The sentence imposed must be
“sufficient, but not greater than necessary, to comply with the
purposes” of sentencing. 18 U.S.C.A. § 3553(a). A
within-Guidelines sentence is presumed reasonable on appeal, and
the defendant bears the burden to rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors. United States v. Montes–Pineda,
445 F.3d 375, 379 (4th Cir. 2006).
At resentencing, the court reiterated many of its
prior findings, including that Hill’s conduct caused devastation
to the community, and noting the seriousness of the offense,
Hill’s lack of remorse, and the long-term and substantial drug
distribution network. The court also recognized that Hill
involved two “fine people” who had bright futures ahead of them
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and now have felony convictions. Finally, the court took notice
of the large number of Hill’s serious prior convictions. The
court stated that the new Guidelines range was substantially
lower than the original sentence in part because of the
application of the Fair Sentencing Act, which was not available
at the original sentencing. The court held that 144 months was
sufficient, but not greater than necessary, and was within the
Guidelines range. In light of the totality of the
circumstances, the within-Guidelines sentence is reasonable, and
the defendant has not rebutted the presumption of reasonableness
by demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors. Montes–Pineda, 445 F.3d at 379.
We have reviewed the entire record in accordance with
Anders for any meritorious issues and found none. We therefore
affirm Hill’s sentence. This court requires that counsel inform
Hill, in writing, of the right to petition the Supreme Court of
the United States for further review. If Hill 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 Hill.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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