US v. Alan Ng, No. 08-4305 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4305 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ALAN LUN WAI NG, a/k/a Lun Waing, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:07-cr-00024-RLV-CH-1) Submitted: April 15, 2010 Before MOTZ and Circuit Judge. AGEE, Circuit Decided: Judges, and May 14, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alan Lun Wai Ng pled guilty, without the benefit of a plea agreement, to conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 (2000), and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 (2006). Ng was sentenced at the bottom of his advisory Sentencing Guidelines range to twenty-four months imprisonment. On appeal, Ng s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating, in his view, there are no meritorious issues for appeal, but raising the issues of whether the district court committed procedural errors in imposing Ng s sentence and whether Ng s sentence is substantively unreasonable. We affirm the judgment of the district court. This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). appellate court must first committed no procedural error. In reviewing a sentence, the ensure that the district Gall, 552 U.S. at 51. court If there are no procedural errors, the appellate court then considers the brief. Ng was informed of his right to file a pro se supplemental He has elected not to do so. 2 substantive reasonableness of the sentence. Id. A substantive reasonableness review entails taking into account the totality of the circumstances. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quotations and citation omitted). court presumes that a sentence within a properly This calculated See United States v. Allen, 491 guidelines range is reasonable. F.3d 178, 193 (4th Cir. 2007). When rendering a sentence, the district court must make an individualized 2009) based on the facts United States v. Carter, 564 F.3d 325, 328 (4th presented. Cir. assessment (quoting Gall, 552 U.S. at 50). Accordingly, a sentencing court must apply the relevant 18 U.S.C. § 3553(a) (2006) factors to the particular facts presented and must state in open court the particular reasons that support its chosen sentence. a chosen enough to Id. Stating in open court the particular reasons for sentence requires satisfy this the court district that the court to district set court forth has a reasoned basis for its decision and has considered the parties arguments. Id. nonfrivolous that set Where the defendant or prosecutor presents reasons forth in for the imposing advisory a different Guidelines, a sentence than district judge should address the party s arguments and explain why he has rejected those arguments. Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007). Failure to address a party s non3 frivolous sentencing arguments and adequately explain the chosen sentence constitutes procedural error. United States v. Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010). We recently clarified the standard of review applicable to the adequacy of a district court s explanation of a defendant s sentence and the method by which a defendant may preserve an objection to that explanation. 576-78. Lynn, 592 F.3d at [I]f a party repeats on appeal a claim of procedural sentencing error . . . which it has made before the district court, [this court] review[s] for abuse of discretion and will reverse unless court Id. at 576. harmless. the the district individualized court can conclude that the error was An aggrieved party sufficiently alerts of explanation its responsibility by drawing to arguments render from § an 3553 for a sentence different than the one ultimately imposed, and thereby, the party sufficiently preserves its claim. 578. However, if a defendant fails to preserve his or her claim, this court reviews only for plain error. Here, Id. at Ng sufficiently preserved his claims by Id. at 577. arguing for a variance sentence, and they are, therefore, reviewed for abuse of discretion. See United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). Ng first claims the district court erred in denying his request for a variance sentence on the ground that he had 4 already received the benefit of a minor role adjustment and the safety valve provision. The transcript clearly indicates, though, that the district court did not deny a further reduction because of the safety valve provision and USSG § 3B1.1, but merely cited to those two provisions to explain that the court was being generous the with sentence at high range. Accordingly, the end Ng sentence or above fails to Ng s by not imposing advisory demonstrate a guidelines error by the district court, and his claim fails. Ng next argues that the district court committed procedural error in failing to address his argument that, due to his status impose a According as a deportable variance to Ng, alien, sentence. his status the See as a 18 district U.S.C. deportable court should § 3553(a)(6). alien created unwarranted sentencing disparities between himself and a U.S. citizen found guilty of similar conduct because he would not be eligible to spend the final ten percent of his sentence in a halfway house and would remain detained pending deportation. In sentencing Ng, the district court indicated that it would have been inclined to impose a sentence near the high end of Ng s advisory guidelines range due to questions surrounding Ng s disclosures to the Government. However, the district court selected a sentence near the bottom of Ng s advisory guidelines range due to Ng s family situation and lack of a prior record. 5 The district court then stated that it will decline to give any variance because circumstances. it is not appropriate under these The district court never explicitly stated why Ng s reasons for a variance sentence were rejected. Assuming that the district court s failure to provide such an explanation constituted significant procedural error, we find the error was harmless because the Bureau of Prisons is given sole authority to determine where an inmate will serve his or her sentence. See 18 U.S.C. § 3621(b) (2006); Elwood v. Jeter, 386 F.3d 842, 844, 847 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17, 22 (1st Cir. 2004); see also 18 U.S.C. § 3624(c)(2) (2006) (authorizing the Bureau of Prisons to place a defendant in a halfway house). Finally, Ng s sentence was substantively reasonable. This court presumes a sentence within the guidelines range is reasonable, and the record does not rebut that presumption in this case. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Ng s convictions and sentence. This court requires that counsel inform Ng, in writing, of the right to petition the Supreme Court of the United States for further review. If Ng requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for 6 leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Ng. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 7
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