US v. Donald Wilkerson, No. 09-4665 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4665 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD WILKERSON, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:09-cr-00017-1) Submitted: November 5, 2009 Decided: November 20, 2009 Before KING, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Edward H. Weis, Assistant Federal Public Defender, 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 Unpublished opinions are not binding precedent in this circuit.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: Donald distribution of Wilkerson a was quantity indicted of on cocaine three and counts one of count of possession with intent to distribute cocaine, occurring on four different days. He entered into a plea agreement in which he agreed to plead guilty to one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006). had the remaining counts dismissed. The Government Wilkerson s total offense level under the advisory Sentencing Guidelines was ten and he was placed in Criminal History Category II. Wilkerson s Guidelines range of imprisonment was eight to fourteen months. At sentencing, the district court believed an upward variance was warranted because it was the third conviction for Wilkerson involving distribution of cocaine and it appeared to the court that Wilkerson needed to appreciate the seriousness of the offense and the public needed to be protected from his criminal conduct. The court sentenced Wilkerson to twenty-four months imprisonment. unreasonable. Wilkerson appeals, claiming the sentence is We find the court did not abuse its discretion and affirm. Appellate courts review a sentence for reasonableness, applying an abuse of discretion standard, whether the sentence is inside or outside the guideline States, 552 U.S. 38, 40 (2007). 2 range. Gall v. United First, the court must ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range. Id. at 51; United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). Procedural errors also § 3553(a) factors, include selecting failing a sentence to consider based on the clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51. A district court must also provide an individualized assessment based upon the specific facts before it. relevant [18 That is, the sentencing court must apply the U.S.C.] § 3553(a) factors circumstances of the case before it. 564 F.3d 325, 328 (4th Cir. to the specific United States v. Carter, 2009). Such individualized treatment is necessary to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime Id. (quoting Gall, 552 U.S. at and the punishment to ensue. 52) (internal quotation marks omitted). In so doing, the district court must set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis authority. 356 (2007)). for exercising his own legal decision making Id. (quoting Rita v. United States, 551 U.S. 338, This individualized assessment need not be elaborate or lengthy, but it must provide a rationale tailored 3 to the particular case at hand meaningful appellate review. and adequate to permit Id. at 330 (quoting Gall, 552 U.S. at 50). Only after determining that no significant procedural error occurred reasonableness totality of does of the the this court sentence, circumstances, review taking including variance from the Guidelines range. the into the substantive account extent of the any United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 50). When reviewing the substantive reasonableness of an upward variance, the court must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. Gall, 552 U.S. at 51. Even if [this court] would have reached a different sentencing result on our own, this fact alone is insufficient to justify reversal of the district court. Pauley, 511 F.3d at 474 (quoting Gall, 552 U.S. at 51). Under 18 U.S.C. § 3553(a) (2006), the district court should consider the nature and circumstances of the offense and the history and characteristics of the defendant. The court should impose a sentence that reflects the seriousness of the offense, the need to promote respect for the law, to provide just punishment, to afford adequate deterrence, to protect the 4 public from further crimes and to provide the defendant with adequate rehabilitation or medical treatment. We find the district court provided an adequate individualized assessment of the § 3553 sentencing factors in relation to Wilkerson and his criminal conduct. The court took into consideration Wilkerson s prior criminal conduct as well as his positive attributes. Accordingly, we find the district court did not abuse its discretion. We affirm the conviction and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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