United States v. Loper , 293 F. App'x 999 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD W. LOPER, III,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00067-2)
Submitted: September 16, 2008 Decided: September 26, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, John L. File, Assistant United States Attorney, Beckley,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald W. Loper, III, pled guilty to conspiracy to
distribute five grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2000), and was sentenced to 98 months of
imprisonment. On appeal, Loper argues that the district court
failed to articulate the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2008) factors it considered in determining his sentence. We affirm
Loper’s sentence.
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007);
United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007)
(discussing procedure district courts must follow in sentencing
defendant). Here, the district court properly calculated the
guideline range and correctly treated the sentencing guidelines as
advisory.
Loper maintains that the district court not only failed
to articulate the § 3553(a) sentencing factors it considered in
imposing his sentence, but that there is also no indication in the
record that the district court considered the sentencing factors
with any particularity to him. Due to the district court’s alleged
failure to articulate the sentencing factors, Loper argues that he
received a de facto mandatory sentence under the guidelines.
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The district court “need not robotically tick through
§ 3553(a)’s every subsection” but should “provide [this court] an
assurance that the sentencing court considered the § 3553(a)
factors with regard to the particular defendant . . . . ” United
States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). Here, the
district court explained that it had considered the § 3553(a)
factors and the advisory guideline range. Moreover, it stated that
it believed the sentence was appropriate given the amount of drugs
involved in this case, Loper’s significant criminal history, and
the fact that Loper was involved in bringing drugs into West
Virginia from out of state. We find that the district court
adequately considered the § 3553(a) factors.
Further, we find that the 98-month sentence, which is
within the advisory guidelines range, and well below the forty-year
statutory maximum sentence, see 21 U.S.C. § 841(b)(1)(B) (2000), is
reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding presumption of reasonableness of within-guideline
sentence); United States v. Abu Ali, 528 F.3d 210, 261 (2008).
Accordingly, we affirm Loper’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately
addressed in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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