US v. Christopher Lord, No. 08-5043 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5043 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHRISTOPHER LYNN LORD, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Jr., District Judge. (1:07-cr-00274-1) Submitted: July 20, 2010 Before KING and Circuit Judge. SHEDD, Decided: Circuit Judges, and August 19, 2010 HAMILTON, Senior Affirmed by unpublished per curiam opinion. J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher written plea Lynn agreement, Lord to pled one guilty, count of pursuant using to a interstate commerce to attempt to persuade, induce, entice, or coerce a minor to engage in illegal sexual activity, * in violation of 18 U.S.C. § 2422(b) (2006). The district court calculated Lord s Guidelines range at 235 to 293 months imprisonment, see U.S. Sentencing Guidelines Manual (2006), and sentenced Lord to 235 months release. imprisonment and twenty-five Lord timely appealed. years supervised On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he raises two sentencing issues. Lord has filed a pro se supplemental brief raising several sentencing challenges and a challenge to his conviction. We affirm. Counsel questions whether the district court erred in denying Lord s Guidelines range. request for a variant sentence below the However, a district court s refusal to depart from the applicable Guidelines range does not provide a basis for appeal under 18 U.S.C. § 3742(a) (2006), unless the court failed to understand its authority to do so. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). * United States v. After review of the Specifically, the indictment alleged that the sexual activity would violate N.C. Gen. Stat. § 14-202.1 (2009), which prohibits taking indecent liberties with a minor. 2 record, we find no evidence that the district court failed to understand its authority to impose a below-Guidelines sentence. Accordingly, this claim is not cognizable on appeal. Turning to the sentence imposed, we review it under a deferential abuse-of-discretion standard. States, 552 U.S. 38, 41 (2007). must first ensure that Gall v. United In conducting this review, we 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. at 51. When rendering a sentence, the district court must make an individualized assessment based on the facts presented, United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted), and must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing, Gall, 552 U.S. at 50. When imposing a sentence within the Guidelines, however, the [district court s] explanation need not be elaborate or lengthy because [G]uidelines sentences themselves are in many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing 3 policy. United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation marks omitted). Once we have determined that the sentence is free of procedural error, reasonableness of we the must consider tak[ing] sentence, the substantive into account Gall, 552 U.S. at 51. totality of the circumstances. the If the sentence is within the appropriate Guidelines range, we apply a presumption on appeal that the sentence is reasonable. United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Lord challenges the district court s calculation of the base offense level on the basis that the presentence report ( PSR ), which the district court adopted, improperly found him to be a repeat and dangerous sex offender against minors, see USSG § 4B1.5. Lord, however, has not offered any evidence to the contrary or specifically explained why the PSR is inaccurate or unreliable. His mere disagreement with the PSR s assessment of his behavior, particularly on appeal for the first time, is, without more, insufficient dispute. See (4th Cir. 1990). United to States Because put v. Lord the PSR s Terry, 916 failed to findings F.2d make the 157, into 162 required affirmative showing that the PSR was inaccurate or unreliable, the district court findings . . . without more was free specific 4 to inquiry adopt or [its] explanation. Id. (internal quotation marks omitted). We accordingly affirm the district court s calculation of Lord s base offense level. Additionally, we conclude that the district court did not otherwise sentence. commit The reversible court procedural correctly error calculated in imposing the advisory Guidelines range and heard argument from counsel and allocution from Lord. The court considered the § 3553(a) factors and explained that the within-Guidelines sentence was warranted in light of the nature and circumstances of the offense, Lord s history and characteristics, and the need to protect the public from further crimes by Lord. Further, neither counsel nor Lord offers any grounds to rebut the presumption on appeal that the within-Guidelines sentence of 235 months imprisonment is substantively reasonable. Next, counsel questions whether the district court erred in not ordering the 235-month imprisonment term to run concurrently to the prison term Lord was then serving for a violation of his state probation. However, as the prison term Lord sentencing was serving at the time of for the subject federal conviction pertained to an unrelated state conviction, the district court was free to impose a concurrent, partially concurrent, or consecutive sentence § 5G1.3(c), p.s. 5 on Lord. See USSG In his pro se brief, Lord contends that the district court erred by failing to consider USSG § 5G1.3(c), p.s., when it ordered the 235-month prison term to run consecutive to, rather than concurrent with, his undischarged state prison term. Although we ordinarily review legal questions concerning the application of the Sentencing Guidelines de novo, see United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010), where a defendant argues on appeal that the district court erred in its consideration of USSG § 5G1.3 p.s., but did not invoke the Guideline or argue that he was entitled to a concurrent sentence in the district court, we review only for plain error, United States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004). not demonstrated error under either standard Lord has of review. Although the district court did not specifically mention USSG § 5G1.3(c), p.s., at the sentencing hearing, the provision was cited in the PSR, and it is clear from the record that the district court considered the PSR as well as the arguments by counsel for and against a concurrent sentence. can fairly infer that the district court Accordingly, we considered § 5G1.3(c), p.s., and Lord has not shown any error. USSG See United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) ( A [district] court need not engage in ritualistic incantation in order to establish its consideration of a legal issue. It is sufficient if . . . the district court rules on issues that have been fully 6 presented for determination. Consideration is implicit in the court's ultimate ruling. ). Lord also raises a pro se challenge to the court s imposition of a special release providing control any that sexually condition he not of his view, explicit term of purchase, materials supervised possess, including, but or not limited to[,] pictures, magazines, video tapes, movies, or any material obtained through access to any computer or any material linked to computer access or use. Because Lord did not object to the special condition at the time of sentencing, we review See United States v. Rodriguez-Rodriguez, only for plain error. 441 F.3d 767, 772 (9th Cir. 2006). we conclude that the condition After review of the record, is reasonable, given Lord s background and the need for the district court to protect the public. Lord thus fails to show plain error. Turning to Lord s conviction, because he did not move in the district court to withdraw his guilty plea, the Fed. R. Crim. P. 11 hearing is reviewed for plain error. See United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). review of the transcript of the plea hearing leads Our us to conclude that the district court substantially complied with the mandates of Critically, Rule the 11 in transcript accepting reveals Lord s that the guilty plea. district court ensured the plea was supported by an independent factual basis 7 and that Lord entered the plea knowingly and voluntarily with an understanding DeFusco, of 949 the F.2d consequences. 114, 116, See United 119-20 (4th States Cir. v. 1991). Accordingly, no plain error occurred in the conduct of the plea proceeding. Finally, we reject as unsupported by the record Lord s claim that he is actually innocent of the offense to which he pled guilty because the Government failed to show that the activity he attempted to induce was sexual activity. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for review. We therefore affirm the district court s judgment. This court requires that counsel inform Lord, in writing, of the right to petition the Supreme Court of the United States for further review. If Lord requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Lord. facts this We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 8

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