US v. Isaac DeBerry, No. 08-4443 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4443 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISAAC JACOB DEBERRY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, Chief District Judge. (2:07-cr-00165-1) Submitted: March 17, 2009 Decided: April 1, 2009 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Monica L. Dillon, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isaac Jacob DeBerry appeals his sentence of 103 months of imprisonment after a guilty plea to distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006). DeBerry claims that the district court erred in including two instances of uncharged criminal conduct as relevant conduct for sentencing purposes. Finding no error, we affirm. Appellate district court courts discretion standard. a sentence imposed reasonableness, for review applying an by abuse a of Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). court The appellate court must first ensure that the district committed failing to [g]uidelines no significant calculate range, (or treating procedural improperly the errors, such calculating) [g]uidelines as as the 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 . . . . Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597). If there are no procedural errors in the sentence, the appellate court then considers the substantive reasonableness of the sentence. Gall, 128 S. Ct. at 597. Substantive reasonableness review entails taking into account the totality of the circumstances, including the extent of any variance from 2 the [g]uidelines range. Pauley, Gall, 128 S. Ct. at 597). 511 F.3d at 473 (quoting Moreover, the appellate court must give due deference to the district court s decision that the § 3553(a) factors . . . justify the extent of the variance. Id. at 473-74. The DeBerry s DeBerry challenged sentencing was advisory range sentenced guidelines relevant as a range conduct under the career was did advisory offender. therefore not affect guidelines. The upon based applicable DeBerry s status as a career offender and the statutory maximum for the crime to which he pleaded guilty. Thus, the inclusion of the challenged incidents as relevant conduct had no effect on his resultant guidelines range or the sentence imposed by the district court. We court. legal before therefore affirm the judgment of the district We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 3
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