US v. Damian Polk, No. 10-4202 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMIAN AURELIUS POLK, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08-cr-00221-TDS-1) Submitted: November 30, 2010 Decided: December 3, 2010 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Christopher A. Beechler, Winston-Salem, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Damian Aurelius Polk pled guilty, pursuant to a written plea agreement, to conspiracy to distribute fifty grams or more of a mixture and substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 846 (2006). The district court determined that Polk satisfied the requirements for application of the safety valve and sentenced Polk below the statutory mandatory minimum to ninety-two months imprisonment. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal reasonableness of Polk s sentence. but questions the Polk was notified of his right to file a pro se supplemental brief, but he has not done so. Finding no error, we affirm. Appellate review of a sentence, whether inside, just outside, or significantly outside the Guidelines range, is for Gall v. United States, 552 U.S. 38, 41 abuse of discretion. (2007). This review requires consideration of both procedural and substantive reasonableness of a sentence. 51. the Id. at This court must assess whether the district court properly calculated U.S.C. the advisory § 3553(a) presented by the selected sentence. Guidelines (2006) parties, factors, and range, considered analyzed sufficiently any the 18 arguments explained the Id. at 49-50; see also United States v. 2 Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). We may presume a sentence imposed within the properly calculated Guidelines range is reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). We have reviewed the record with these standards in mind. is Our examination leads us to conclude that Polk s sentence procedurally district court and did substantively not abuse its sound. Therefore, discretion in imposing the the chosen sentence. 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 Polk, in writing, of the right to petition the Supreme Court of the United States for further review. If Polk requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this and legal for leave to withdraw from Counsel s motion must state that a copy thereof was served on Polk. facts court We dispense with oral argument because the contentions are 3 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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