US v. Benjamin Keziah, No. 09-4261 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4261 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BENJAMIN LEE KEZIAH, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:08-cr-00058-MR-1) Submitted: October 29, 2009 Before WILKINSON and Senior Circuit Judge. GREGORY, Decided: Circuit November 9, 2009 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Joseph L. Ledford, JOSEPH L. LEDFORD, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benjamin Keziah pleaded guilty to possession of child pornography, in violation of 18 U.S.C.A. § 2252(a)(4)(B) (West 2009), and two counts of receiving child pornography, violation of 18 U.S.C.A. § 2252(a)(2) (West 2009). in The district court sentenced Keziah to 151 months of imprisonment and he now appeals. Finding no error, we affirm. Keziah argues that the district court s sentence is procedurally and sentence reasonableness, for standard. substantively unreasonable. applying an abuse We of review a discretion Gall v. United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), petition for cert. filed (U.S. July 24, 2009) (No. 09-5584). for significant calculate (or In so doing, we first examine the sentence procedural improperly error, including calculating) the failing [g]uidelines to range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] based on § 3553(a) clearly [(2006)] erroneous factors, facts, explain the chosen sentence . . . . or selecting failing to a sentence adequately Gall, 128 S. Ct. at 597. This court then consider[s] the substantive reasonableness of the sentence imposed. United States v. Evans, 526 F.3d 155, 161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). Substantive 2 reasonableness review entails taking into account the totality of the circumstances, including the extent of any variance from the [g]uidelines range. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597). If the sentence is within a the guidelines reasonableness. range, we apply presumption of United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within-guidelines sentence). We have thoroughly reviewed the record and find that the sentence is both procedurally and substantively reasonable. The district court properly calculated the advisory guidelines range, considered the 18 U.S.C. § 3553(a) factors, and provided an adequate explanation of its chosen sentence. See United States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). In addition, of Keziah substantive has failed reasonableness we to rebut accord to the his presumption within-guidelines sentence. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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