United States v. Kevin Guy , 533 F. App'x 274 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4006
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN DARNELL GUY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00144-NCT-1)
Submitted: July 10, 2013 Decided: July 18, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Stephen Thomas Inman, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Guy appeals from his conviction entered pursuant
to his guilty plea to felon in possession of a firearm and
forty-six-month sentence. Counsel has filed an Anders v.
California, 386 U.S. 738 (1967), brief questioning whether Guy’s
sentence was greater than necessary to accomplish the sentencing
purposes of 18 U.S.C. § 3553(a) (2006), but concluding that
Guy’s sentence is reasonable and there are no meritorious issues
for review. Neither Guy nor the Government has filed a brief.
We affirm.
Guy did not object to the revised pre-sentence report
(PSR) calculating a Sentencing Guidelines range of 37-46 months.
The probation officer recommended a sentence in the middle of
the Guidelines range. Counsel argued for a sentence below the
middle of the range. He argued that Guy had a difficult
childhood, losing his brother and grandmother in a house fire
when he was four years old, spending time in foster care, he was
not “reunited” with his mother until age eleven, was introduced
to marijuana at age eight, and has since struggled with
substance abuse. Counsel also argued that Guy’s possession of
firearms was due to his perceived need for self protection.
The district court noted that Guy cannot seem to stay
away from firearms. The court recounted the five
firearms-related convictions in Guy’s criminal history and that
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five months after his most recent release, he had once again
been arrested on a firearms charge. The court also noted that
Guy violated the terms of his probation in several ways and that
he had other pending criminal charges. The court stressed that
the only way to protect the public was to impose a high-end
sentence. The court specifically considered that Guy had a
particularity traumatic childhood, but the need to protect the
public weighed more heavily in the court’s consideration. The
court ultimately imposed a 46-month sentence.
We review Guy’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, this court considers whether the
district court properly calculated the defendant’s advisory
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
If the sentence is free of significant procedural
error, the court reviews it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
at 51. If the sentence is within the properly calculated
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Guidelines range, this court applies a presumption on appeal
that the sentence is substantively reasonable. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only if the defendant shows “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) (internal quotation marks omitted).
We conclude that there is no procedural error and the
record does not include any sentencing factors that would
overcome the presumption that Guy’s within-Guidelines sentence
is reasonable. The court clearly considered Guy’s arguments for
a sentence below the middle of the Guidelines range and
considered its obligation to fashion a sentence that
accomplishes the purposes set out in § 3553(a).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Guy’s conviction and sentence. This court
requires that counsel inform Guy, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Guy 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 Guy.
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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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