US v. Tyree Slade, No. 09-4265 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4265 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TYREE LAMAR SLADE, a/k/a Ovious Mcfly, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:08-cr-00024-jpj-pms-5) Submitted: March 4, 2010 Decided: March 25, 2010 Before MOTZ, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James Gordon Hunter, III, O KEEFFE & SPIES, Lynchburg, Virginia, for Appellant. Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tyree conspiracy cocaine to base violation Lamar possess and of 21 Slade and five pled distribute hundred U.S.C. guilty grams § 846 to fifty or grams more (2006). The sentenced Slade to 300 months in prison. one of count or of more of cocaine, in district court On appeal, Slade s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he believed there were no meritorious issues for appeal. two issues in However, at Slade s request, counsel raised the brief: (1) whether Slade s sentence was greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a) (2006), and (2) whether the district court erred in deviating from the guideline computation and/or criminal history category, including but not limited to the plea agreement in this case. Slade has not filed a supplemental pro se brief, nor has the Government filed a response to the Anders brief. * Finding no error, we affirm. * Slade consented to waive all of his rights to appeal his sentence and any and all issues in this matter, and agreed that he would not file a notice of appeal. However, because the Government has not filed a Motion to Dismiss or otherwise asserted this waiver, this court may undertake a review pursuant to Anders v. California, 386 U.S. 738 (1967). See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) ( If an Anders brief is filed, the government is free to file a responsive brief raising the waiver issue (if applicable) or do nothing, allowing this court to perform the required Anders review. ). 2 When a sentence is challenged on appeal, this court reviews the sentence reasonableness Gall v. for using United an States, both abuse 552 procedural of U.S. and discretion 38, 51 substantive standard. (2007). See Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range. Id. Here, Slade argues that the district court erred by determining that his base offense level was thirty-eight, as calculated in the presentence report ( PSR ), and not thirtyseven as determined in the plea agreement. Slade is correct that that his plea agreement specifically noted the career offender Guidelines section, which would have put Slade s base offense level conduct. at However, thirty-seven, it also was stated applicable to Slade s expressly that other guideline sections may be applicable to Slade s case, and that both he and the Government were free to argue whether these sections should or should not apply; to the extent the arguments are not inconsistent with the stipulations, recommendations and terms set agreement forth in contained this a plea agreement. provision 3 that Additionally, recognized that the the district court stipulation maximum. was and not bound may sentence by any [Slade] recommendation up to the or statutory Slade s counsel never argued that U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2008) was incorrectly applied to Slade sentencing based on court the to relevant give facts, credit to but the rather base asked offense the level noted in the plea agreement because the resulting sentence would still be subject to a twenty-year statutory minimum. Because the PSR determined that Slade was criminally involved with more than 4.5 kilograms of cocaine base, the application of § 2D1.1(c)(1) to determine Slade s base offense level was not in error. The court also allowed the parties to present arguments as to what they believed was an appropriate sentence, Slade was given the opportunity to testify, and the court considered the § 3553(a) factors and documented an explanation for imposing the final sentence. Thus, the district court did not commit procedural error in sentencing Slade. Slade also challenges the substantive reasonableness of his sentence, questioning whether the sentence was greater than necessary 18 U.S.C. to comply § 3553(a). with However, the the purposes sentence set was forth within in the properly calculated Guidelines range, and we presume on appeal that the sentence is substantively reasonable. States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). 4 See United Moreover, as noted, the sentencing court considered the factors in § 3553(a) and explained that the sentence was intended to serve as a deterrent, to provide punishment for the offense, and to promote respect for the law by having Slade take responsibility for his actions. As a result, Slade s sentence is not substantively unreasonable. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Slade s conviction and dismiss that part the of appeal relating to his sentencing. This court requires that counsel inform Slade, in writing, of the right to petition the Supreme Court of the United States for further review. If Slade requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this and materials legal before for leave to withdraw from Counsel s motion must state that a copy thereof was served on Slade. facts court We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 5
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