United States v. Glenn , 298 F. App'x 259 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LATASHA EVETTE GLENN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-00711-HFF-22)
Submitted: October 16, 2008 Decided: October 30, 2008
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ernest Hamilton, Greenville, South Carolina, for Appellant.
Elizabeth Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latasha Evette Glenn appeals the district court’s
judgment entered pursuant to her conviction and 57-month
sentence after pleading guilty to conspiracy to possess with
intent to distribute five kilograms or more of cocaine and fifty
grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846 (2000). Counsel for Glenn filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
in which he asserts there are no meritorious issues for appeal,
but asks this court to review whether the district court failed
to give adequate consideration to the assistance Glenn provided
to the Government. Glenn was notified of the opportunity to
file a pro se supplemental brief, but has failed to do so.
Finding no error, we affirm.
Following United States v. Booker, 543 U.S. 220(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Guidelines range. It must then consider the resulting range in
conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008) and determine an appropriate sentence.
Gall v. United States, 128 S. Ct. 586, 596 (2007). We review
the district court’s imposition of a sentence for abuse of
discretion. Id. at 597; see also United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007). This court “must first ensure
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that the district court committed no significant procedural
error, such 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--including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider
the substantive reasonableness of the sentence. Id.“Substantive reasonableness review entails taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Pauley, 511 F.3d at 473(internal quotation marks and citation omitted). Further, this
court may presume a sentence within the Guidelines range to be
reasonable. Id. Mere disagreement with the district court’s
exercise of sentencing discretion does not permit us to
substitute our judgment for that of the lower court. Id. at
473-74. “Even if we would have reached a different sentencing
result on our own, this fact alone is ‘insufficient to justify
reversal of the district court.’” Id. at 474 (quoting Gall, 128
S. Ct. at 597).
While Glenn contends the district court failed to
adequately consider her assistance to the Government in
determining her sentence, there is no evidence to support this
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assertion, especially in light of the fact that she received a
sentence at the low end of the Guidelines range. The district
court heard argument from Glenn and explicitly stated that it
had considered the factors set forth in § 3553(a). See United
States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).
Furthermore, the filing of a motion for downward departure was
within the Government’s sole discretion, as the Government was
not required to move for a reduction under the terms of the plea
agreement. Nor is there any evidence in the record that the
refusal was based on an unconstitutional motive. * See Wade v.
United States, 504 U.S. 181, 185-86 (1992). Accordingly,
Glenn’s claim is meritless.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of her
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 such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
*
The Government conceded that Glenn provided helpful
information early in the investigation. The Government
maintained, however, that Glenn’s assistance did not rise to the
level of substantial assistance required for filing a motion
pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (2007).
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representation. Counsel’s motion must state that 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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