US v. Gilmore Richards, No. 08-4990 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4990 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GILMORE RICHARDS, Defendant Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. Thomas E. Johnston, District Judge. (1:08-cr-00040-1) Submitted: July 20, 2009 Decided: August 14, 2009 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. John H. Tinney, Jr., TINNEY LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Charleston, West Virginia, Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gilmore agreement to Richards one count of pled guilty pursuant distribution of violation of 21 U.S.C. § 841(a)(1) (2006). to cocaine a plea base, in As part of the plea agreement, Richards waived his right to appellate review of the reasonableness of a sentence within the Guidelines range. district sentence court of 70 sentenced months Richards imprisonment. to a The within-Guidelines Richards counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning Richards whether motion for a the district downward sentence imposed is reasonable. court departure contends and in denying whether the The Government does not seek to enforce the plea agreement s appeal waiver. * Richards erred that the We affirm. district court erred in denying his motion for a downward departure, pursuant to U.S. * Because the Government does not seek enforcement of the appeal waiver, we need not consider whether the waiver is dispositive of this appeal. See United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal waiver that arguably barred the appeal on one issue because the Government had expressly elected not to argue waiver with respect to that issue); cf. United States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005) (enforcing a plea agreement s appeal waiver where the Government sought enforcement, the issues raised fell within the waiver s scope, and no claim was presented that the Government breached its obligations under the plea agreement). 2 Sentencing Guidelines Manual § 4A1.3 (2007), on the basis that his criminal history category over-represented the seriousness of his criminal history. A district court s refusal to depart from the applicable Sentencing Guidelines range does not provide a basis for appeal under 18 U.S.C. § 3742 (2006), unless the court failed to understand its authority to do so. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). After review court of the record, we conclude that the district clearly recognized its authority to depart but determined that a downward departure was not warranted. Accordingly, this claim is not cognizable on appeal. A review of the presentence report reveals determining a defendant s sentencing no error sentence, transcript in the and sentencing. district court the In must calculate properly the advisory Guidelines range and consider this range in conjunction 18 U.S.C. § 3553(a) (2006). ___, 128 S. Ct. 586, with the factors set forth at Gall v. United States, 552 U.S. 38, 596-97 (2007). We review a district court s imposition of a sentence, whether inside, just outside, or significantly outside the Guidelines range, under an abuseof-discretion standard. within the applicable reasonable on appeal. 128 S. Ct. at 591. Guidelines range Further, sentences may be presumed United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). 3 The district court followed the necessary procedural steps in sentencing Richards, properly calculating, treating as advisory, and considering the Guidelines range, performing an individualized assessment of the relevant § 3553(a) factors, and stating in open court the reasons for its sentence. States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). United Richards sentence, which is at the low end of the applicable Guidelines range and below the statutory maximum of twenty years imprisonment, may be presumed on appeal to be reasonable. We conclude that the district court did not abuse its discretion in sentencing Richards. 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 Richards, in writing, of the right to petition the Supreme Court of the United States for further review. If Richards requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Richards. We dispense with oral argument because the facts and legal contentions are adequately presented in the 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5
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