United States v. Jerry Kiser , 474 F. App'x 237 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY LEE KISER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00165-CCE-1)
Submitted: June 19, 2012 Decided: June 21, 2012
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Jr., First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lee Kiser appeals his conviction and 192-month
sentence for production of child pornography, in violation of 18
U.S.C.A. § 2251(a) & (e) (West Supp. 2011). Kiser’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), in which he states that he could identify no meritorious
issues for appeal, but requests that we review Kiser’s sentence
for error. * Having reviewed the record, we affirm the judgment
of the district court.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We first ensure 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 [18 U.S.C. § 3553(a) (2006)] factors, selecting
a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Id. If no procedural
error was committed, we review the sentence for substantive
reasonableness, taking into account the “totality of the
circumstances.” Id. In this respect, “an appellate court must
*
Despite receiving notice of his right to file a pro se
informal brief, Kiser has not done so. The Government has
elected not to file a brief.
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defer to the trial court and can reverse a sentence only if it
is unreasonable, even if the sentence would not have been the
choice of the appellate court.” United States v. Evans, 526
F.3d 155, 160 (4th Cir. 2008) (emphasis in original). A
sentence that falls within a properly calculated Guidelines
range is presumptively reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007).
Our review of the record reveals no reason to disturb
the presumptive reasonability of Kiser’s within-Guidelines
sentence. See id. In accordance with Anders, we have reviewed
the entire record in this case and have found no meritorious
issues for appeal. We therefore affirm the judgment of the
district court. This court requires that counsel inform Kiser,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Kiser 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 Kiser. 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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