US v. Lewis Hardy, No. 10-4205 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4205 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEWIS R. HARDY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:07-cr-00120-WDK-JEB-1) Submitted: October 25, 2010 Decided: November 29, 2010 Before GREGORY, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jennifer T. Stanton, J.T. STANTON P.C., Norfolk, Virginia, for Appellant. Kevin Michael Comstock, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lewis R. Hardy was convicted after a jury trial of conspiracy to possess with intent to distribute heroin and cocaine base ( crack ), in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006); possession with intent to distribute heroin and crack, in violation of § 841(a)(1); possession with intent to distribute heroin and crack within 1000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2006). sentenced appealed. Hardy to 185 months of The district court imprisonment and he timely On appeal, this court affirmed Hardy s convictions, but vacated his sentence and remanded for resentencing based on an error in the criminal history calculations under the advisory sentencing guidelines. See United States v. Hardy, 322 F. App x 298 (4th Cir. 2009). On remand, the district court sentenced Hardy to 168 months of imprisonment and Hardy now appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising two issues. supplemental brief. * Hardy has also filed a pro se Finding no error, we affirm. * We have reviewed the arguments raised in the supplemental brief and conclude that they lack merit. 2 pro se Counsel first questions whether the district erred in calculating the advisory guidelines range. sentence for standard. reasonableness, applying an abuse court We review a of discretion Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). examine the sentence for In so doing, we first significant procedural error, including failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting failing Gall, a to 552 sentence adequately U.S. at based on explain 51. clearly the erroneous chosen Finally, we facts, . sentence then or . consider substantive reasonableness of the sentence imposed. court presumes on appeal that a sentence guidelines range within is . Id. a . the This properly calculated advisory substantively reasonable. Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption of reasonableness for within guidelines sentence). We have thoroughly reviewed the record and conclude that the district guidelines range. court properly calculated the advisory Moreover, the court considered the guidelines range along with the § 3553(a) factors, thoroughly explained its chosen sentence, and responded 3 to the parties sentencing arguments. Cir. See United States v. Carter, 564 F.3d 325, 330 (4th 2009) (district court must conduct individualized assessment based on the particular facts of each case, whether sentence is above, below, or within the guidelines range). addition, we find that the sentence is also In substantively reasonable. Counsel next questions whether the district court erred in denying Hardy s pro se motion for a new trial based on newly-discovered court s denial discretion. (4th Cir. evidence. of a This motion for court a new reviews trial a for district abuse of See United States v. Fulcher, 250 F.3d 244, 249 2001). To receive a new trial based on newly-discovered evidence, a defendant must demonstrate that (1) the evidence is newly-discovered; (2) he has been diligent in uncovering it; (3) it is not merely cumulative or impeaching ; (4) it is material to the issues involved ; and (5) it would probably produce an acquittal. Fulcher, 250 F.3d at 249. Having reviewed the record and the applicable legal authorities, we conclude that the court did not abuse its discretion in denying Hardy s motion for a new trial. We have examined the entire record in this case in accordance with the requirements of Anders and have found no meritorious issues for appeal. of the district court. We therefore affirm the judgment This court requires that counsel inform 4 Hardy, in writing, of the right to petition the Supreme Court of the United States for further review. If Hardy requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Hardy. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. AFFIRMED 5
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