US v. Cleveland Jordan, Jr., No. 08-4846 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4846 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CLEVELAND JORDAN, JR., Defendant Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:06-cr-00033-RBS-TEM-1) Submitted: June 11, 2009 Decided: July 9, 2009 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Frances H. Pratt, Keith Loren Kimball, Assistant Federal Public Defenders, Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, William D. Muhr, Assistant United States Attorney, Erin DeBoer, Third Year Law Student, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cleveland Jordan, Jr., pled guilty to three counts of possession of crack cocaine with intent to distribute, 21 U.S.C. § 841(a) (2006). and we He previously appealed his 108-month sentence remanded his case for resentencing in Kimbrough v. United States, 128 S. Ct. 558 (2007). light of On remand, the district court applied the revised guidelines applicable to crack offenses imprisonment. sentence is and reduced Jordan s sentence to 100 months Jordan appeals his sentence, arguing that his both procedurally and substantively unreasonable. We affirm. On remand, Jordan requested a sentence at the low end of the guideline range. The district court reviewed the analysis it made at Jordan s first sentencing of the 18 U.S.C. § 3553(a) (2006) factors as they applied in Jordan s case. court noted included that Jordan convictions for had a poor assault, criminal driving record, with a The which suspended license, and possession of marijuana and cocaine, as well as many arrests on charges that were later dismissed. The court noted that Jordan had received a deferred sentence for his prior state drug conviction, that he had committed the current three federal drug offenses within a short period of time, that he was a recidivist, and that he had not been deterred by his previous lenient treatment. 2 The court stated that it did not consider the disparity between crack and powder cocaine sentences to be a significant factor, repeated offenses. but was more concerned with Jordan s The court observed that it still believed the original 108-month sentence had been generous, by which it explained that it meant the sentence was good for Jordan. The court added that, because the law ha[d] changed, * and Jordan was making some progress while in custody, it would impose a reduced sentence of 100 months imprisonment. that a greater sentence than [§ 3553(a)]. of 100 months necessary to would comply be with The court stated sufficient not purposes the but of In a written order, the court stated that, having considered Kimbrough, the amended guidelines, and the § 3553(a) factors, the court finds that a sentence of one hundred (100) months is appropriate and reasonable in this case. We review a sentence for reasonableness under an abuse of discretion standard. 597 (2007). This Gall v. United States, 128 S. Ct. 586, review requires us to consider both procedural and substantive reasonableness of the sentence. at 597. the Id. In determining whether the sentence is procedurally reasonable, we must first assess * whether the district court The amendments to the guidelines for crack offenses were revised in 2007. 3 properly calculated Id. 596-97. at guideline range We considered presented may must the by A § the selected sentence. the defendant s sentence be advisory within afforded an a guideline properly appellate range. calculated presumption of Rita v. United States, 127 S. Ct. 2456, 2459 reasonableness. (2007). the substantive then consider 3553(a) parties, whether factors, and the analyzed of the sufficiently Gall, 128 S. Ct. at 597. reasonableness district the court arguments explained the Finally, we review sentence, taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In evaluating the sentencing court s explanation of a selected sentence, we have consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated guideline range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the same time, the district court must make an individualized assessment based on the facts presented. Gall, 128 S. Ct. at 597; United States v. Carter, 564 F.3d 325 (4th Cir. 2009). The reasons articulated by the district court for a given sentence need not be couched in the precise language of § 3553(a), so 4 long as the reasons can be matched to a factor appropriate for consideration . . . and [are] clearly tied [to the defendant s] particular situation. United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). Where the parties present nonfrivolous reasons for imposing a different sentence from that set forth in the advisory guideline range, the district court should address the party s arguments and explain why they were rejected. Rita, 127 S. Ct. at 2468. Jordan maintains that the district court paid only lip service to the requirement in § 3553(a) that it impose a sentence sufficient, but not greater than necessary, and instead erred by imposing a sentence that the court believed to be appropriate and reasonable. The guideline sentence range, and We disagree. was within may be reasonableness on appeal. a correctly afforded a calculated presumption Rita, 127 S. Ct. at 2459. of Jordan argues that the district court must explain why a lower sentence would have been insufficient, and failed to do so in his case. In fact, the court explained, at the first sentencing hearing, that a sentence below the guideline range would not be sufficient because Jordan had not been deterred from continuing his criminal behavior by prior lenient sentences. Jordan requested guideline range. only a sentence near the low On remand, end of the The court explained that it would not impose a 5 sentence at the low end because the § 3553(a) factors had not changed, because but of the the court lowered gave him a guidelines slightly for crack lower sentence offenses and to credit Jordan s attempts to further his education and training while in prison. sentence as Although reasonable, the in district its court written described order, the the court manifestly did not apply the appellate standard, which permits a presumption that a sentence within guideline range is reasonable. procedure set out in a correctly calculated The court instead followed the Therefore, Gall. the sentence is not procedurally unreasonable. Jordan argues that his 100-month sentence is greater than necessary because he had previously received only light sentences--a total of fifteen weekends in jail--for his prior criminal convictions. However, because the district court considered the § 3553(a) factors on the record and responded to Jordan s argument for a lower sentence, we conclude that the sentence was not substantively unreasonable. We district facts court. and materials therefore legal before We affirm dispense the with sentence oral argument contentions are adequately the and argument court imposed by the because the presented would not in the aid the decisional process. AFFIRMED 6
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