US v. Kenneth Godsey, No. 08-5072 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5072 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KENNETH ROBERT GODSEY, Defendant Appellant.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-00016-1) Submitted: May 12, 2010 Decided: June 3, 2010 Before GREGORY, DUNCAN, and DAVIS, 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 Affirmed by unpublished per curiam opinion.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, Miller Bushong, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth written plea Robert agreement, Godsey to one pled guilty, count of pursuant mailing to a threatening communications, in violation of 18 U.S.C. § 876(c) (2006). The district court calculated Godsey s imprisonment range under the U.S. Sentencing Guidelines Manual (2007) at 33 to 41 months, but imposed an upward variance and sentenced Godsey to 60 months imprisonment. Godsey appeals his sentence, arguing that the district court erred in failing to articulate on the record its consideration of § 3553(a) (2006). * We the sentencing factors under 18 U.S.C. Finding no error, we affirm. review the district court s sentence, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). entails appellate consideration of both substantive reasonableness of a sentence. the standard. This review procedural Id. at 51. and Godsey does not contest the substantive reasonableness of his sentence. * Because the Government has not sought enforcement of the plea agreement s appeal waiver, we need not consider whether the waiver is dispositive of this appeal. Cf. United States v. Blick, 408 F.3d 162, 168-70 (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 In determining whether a sentence is procedurally reasonable, we first assess whether the district court properly calculated the defendant s Guidelines range. Id. at 49, 51. must court then consider Guidelines as whether mandatory, the district failed to consider treated the We the 18 U.S.C. § 3553(a) factors and any arguments presented by the parties, selected a sentence based on clearly erroneous facts, failed to explain sufficiently the selected sentence. or Id. at 50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In evaluating a district court s explanation of a selected sentence, this court has held that, although a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every single factor on the record. 445 F.3d 339, 345 (4th Cir. 2006). United States v. Johnson, However, the district court still must make an individualized assessment based on the facts presented, and apply the relevant § 3553(a) factors to the specific circumstances of the case before it. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). The court must also state in open court the particular reasons supporting its chosen sentence and set forth enough to satisfy this court that it has considered the parties arguments and has a reasoned basis for exercising 3 [its] own quotation legal marks decisionmaking omitted). The authority. reasons Id. (internal articulated by the district court for a given sentence need not be couched in the precise language of § 3553(a), as long as the reasons can be matched to a factor appropriate for consideration under that statute and [are] clearly tied to [the defendant s] particular situation. United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). Because Godsey did not object to the adequacy of the district court s drawing arguments explanation from [18 for the U.S.C.] chosen § 3553 sentence for a [b]y sentence different than the one ultimately imposed, our review is for plain error. United (4th Cir. 2010). the burden of States v. Lynn, 592 F.3d 572, 577-78 To prevail under this standard, Godsey bears establishing that plain court affected his substantial rights. error by the district Id. at 580. In the sentencing context, an error affects substantial rights if the defendant can show that the sentence imposed was longer than that to which he would otherwise be subject. United States v. Washington, 2005) 404 F.3d 834, 843 (4th Cir. (internal quotation marks omitted). Here, in addition to stating that it considered the [a]dvisory Guideline[s] range in determining Godsey s sentence, the district court also evaluated Godsey s continued 4 sending of threatening communications, even after a prior conviction for the same offense and a resulting prison sentence at the statutory maximum, his refusal to get help for the psychological problems influencing his decisions to send such communications, communications. and the number and violent district court § 3553(a) particular The thus factors; namely, nature clearly Godsey s of the considered history and characteristics and the nature and circumstances of his offense. Further, the district court also evaluated and addressed the need for the sentence to reflect the seriousness of Godsey s offense, to promote respect for the law, to deter Godsey, and to protect the victims and the public, noting that an upward variance was justified in light of the violent nature of his continued threatening communications and his refusal to cease his criminal behavior. The district court not only explicitly stated its consideration of the § 3553(a) factors in accordance with Gall and this court s precedents, but also articulated how the sentencing conclude that factors the applied district to this court did case. not We therefore plainly err in explaining its decision to impose the 60-month sentence. The sentence not is procedurally reasonable, and Godsey does challenge the substantive reasonableness of the sentence. 5 Finding no abuse of discretion, we affirm the district court s judgment. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 6
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