US v. Orenthal Dendy, No. 10-4260 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4260 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ORENTHAL JAMES DENDY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry F. Floyd, District Judge. (6:09-cr-00565-HFF-1) Argued: May 10, 2011 Decided: July 14, 2011 Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: David Wilson Plowden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenville, South Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, A. Lance Crick, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Orenthal James Dendy appeals his sentence for possession with intent to distribute and distribution of crack cocaine and for use of a firearm in furtherance of a drug trafficking crime. He argues that the district court inadequately explained its reasons for imposing a sentence within the guidelines range and rejecting his arguments for a lesser sentence. He also contends that a his sentencing hearing was tainted by statement district court made regarding our guidelines precedent. the Finding no error, we affirm. I. On several occasions in 2008, Dendy sold crack cocaine to a confidential informant working Carolina police department. for the Simpsonville, South On the basis of these transactions, the police obtained and executed a search warrant for Dendy s residence. The search revealed crack paraphernalia, a firearm, and ammunition. cocaine, drug A federal grand jury returned a five-count indictment against Dendy; he subsequently pleaded guilty to Counts One and Five. with possessing cocaine base 841(a)(1) and with (crack intent to cocaine), 841(b)(1)(C). in distribute violation Count 2 Count One charged Dendy Five and of distributing 21 charged U.S.C. Dendy §§ with knowingly using and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The United States Probation Office prepared a presentence report ( PSR ), which calculated Dendy s sentence under the guidelines as a range of 21 to 27 months imprisonment for Count One, based upon a total offense level of 15 and a criminal history category of II, plus a mandatory consecutive 60 months imprisonment for Count Five. personal characteristics included specific relationships; details about in some detail. information physical his The PSR also described Dendy s The about Dendy s condition; mental illness diagnosis, mental description health, family including medications, and treatment; substance abuse history; vocational and nonvocational education; employment record; and financial circumstances. At sentencing, the district court recited the recommendations of the PSR regarding the applicable guidelines range. After verifying contents of the PSR, the findings of the PSR as that neither district a basis factors of 18 U.S.C. § 3553(a). party court to objected adopted evaluate the the to the factual sentencing Both the government and defense counsel presented sentencing arguments. The government argued for a within-guidelines sentence, while counsel for Dendy asked the district court to impose a total sentence of 60 months imprisonment. Because the mandatory 3 minimum for Count Five required a sentence of 60 months, Dendy s request in reality constituted a request for a downward variance (to zero) from the 21 to 27 months guideline range for Count One. In support of this request, defense counsel pointed to Dendy s relatively light criminal history (as already reflected in the PSR) and asked the court to consider, as grounds for the variance, the sentencing disparity between crack cocaine and powder cocaine, Dendy s mental illness, and Dendy s inability to maintain employment as a result of that illness. Dendy s counsel argued that Dendy was selling crack not to support his own use, but rather to earn money to help offset his parents support of him during his unemployment. Based upon these considerations, defense counsel argued that a sentence of 60 months would accomplish the goals of sentencing as expressed in the § 3553(a) factors. Thereafter, both Dendy and his father made oral statements in which they underscored the hardships associated with Dendy s mental illness, particularly Dendy s difficulty keeping a job and his resulting financial troubles. After hearing the respective arguments by the parties, the district court explicitly rejected Dendy s request for a downward variance based upon the sentencing disparity between crack cocaine and powder cocaine. The district court reasoned that in its view, crack is a more dangerous drug than powder cocaine. With regard to Dendy s 4 remaining arguments, the district court explicitly agreed with the government s analysis of the relevant § 3553(a) factors. The district court sentenced Dendy to 21 months for Count One, which was the bottom of the guidelines range, plus the mandatory consecutive sentence of 60 months for Count Five, for a total sentence of 81 months. II. A distinct Supreme sentencing Court s framework sentencing has from the since decisions emerged United States v. Booker, 543 U.S. 220 (2005), the decision in which the Court rendered the advisory. once-mandatory federal sentencing guidelines See, e.g., Gall v. United States, 552 U.S. 38, 46-60 (2007); Rita v. United States, 551 U.S. 338, 347-60 (2007). The framework imposes specific procedural requirements upon district courts for the sentencing of criminal defendants. A sentencing court must begin its determination by correctly calculating the defendant s sentencing range under the guidelines, which is the proper starting court s decision. point and the initial Gall, 552 U.S. at 49. benchmark for the Thereafter, the court must allow the parties to argue for whatever sentence they deem appropriate and consider their arguments sentencing factors set forth in § 3553 (a). The court must then choose a in light the See id. at 49-50. sentence based individualized assessment of the facts presented. 5 of on an Id. at 50. After selecting the appropriate sentence, adequately explain the chosen sentence. the court Id. must See also 18 U.S.C. § 3553(c) (requiring sentencing courts to state in open court their reasons for imposing a particular sentence). from these procedural requirements, a district substantial discretion in selecting a sentence. court Apart enjoys United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). Under this sentencing framework, we review sentencing determinations for reasonableness under an abuse-of-discretion Gall, 552 U.S. at 51. standard. Our reasonableness review involves both procedural and substantive elements. Procedural reasonableness the sole issue here concerns the method by which the district court decided the defendant s sentence; a sentencing determination that does not conform to the procedural requirements outlined above is procedurally unreasonable. Accordingly, our review requires us to ensure that the district court committed no significant procedural error, such as 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. Id. If we find that the district court committed such procedural error, and thus abused its discretion, we reverse 6 unless we determine that the error was harmless. * See United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010); United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). III. Dendy first contends that the district court committed procedural error by failing to adequately explain the withinguidelines sentence it imposed upon him. We disagree. When imposing a sentence, a district court must make an individualized assessment based on the facts presented. Gall, 552 U.S. at 50; see also Lynn, 592 F.3d at 576; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). The district court must also provide an explanation for the sentence it imposes. See 18 U.S.C. § 3553(c). The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking authority. Rita, 551 U.S. at 356. This not only allow[s] for meaningful appellate review but it also promote[s] the perception of fair sentencing. 564 F.3d at 328 (quoting Gall, 552 U.S. at 50). * Carter, Furthermore, if Because Dendy argued at sentencing that the § 3553(a) factors warranted a sentence below the applicable guidelines range, his claim of procedural error is properly preserved for appellate review. See United States v. Lynn, 592 F.3d 572, 57879 (4th Cir. 2010). 7 a party presents legitimate reasons for imposing a sentence outside the applicable guidelines range, the sentencing judge will normally go further and explain why he has rejected those arguments. Rita, 551 U.S. at 357; see Carter, 564 F.3d at 328. Although an adequate explanation must every See Rita, 551 U.S. at sentence, the explanation may be brief. 356. accompany The appropriate breadth and depth of a sentencing court s exposition depends upon the circumstances. See id. at 356-57. A sentence within the guidelines range generally requires a less extensive justification than a sentence that departs or varies See United States v. Johnson, 587 F.3d from the guidelines. 625, 639 (4th Cir. 2009). themselves are in This is because guidelines sentences many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing policy. Id. (internal quotation marks omitted). Here, it is undisputed that the district court correctly calculated Dendy s sentencing range under the guidelines, allowed both parties to present arguments for the sentences they thought appropriate, and also heard personal statements by the defendant and his father below-guidelines sentence. in support of their request for a The record also reflects that the district court considered the parties arguments in light of the sentencing factors of § 3553(a) and had a reasoned basis for its decision to reject Dendy s 8 arguments for a below- guidelines requested sentence by the in favor government. of the Rita, guidelines 551 U.S. at sentence 356. The district court adopted the undisputed factual findings of the PSR as a basis to evaluate the § 3553(a) factors, as well as the conclusions of the PSR and the government s recommendation as to the effect of those factors. sentencing In sum, the district court made an individualized assessment based on the facts presented. We also Gall, 552 U.S. at 50. hold that the Dendy s within-guidelines district sentence court s was explanation adequate and reflected this individualized assessment of Dendy s circumstances. sentencing hearing, the district court first for At the explicitly acknowledged Dendy s argument regarding the sentencing disparity between crack and powder cocaine and dismissed it on the ground that in the court s view, crack is more dangerous than powder. The district court also heard and statements of Dendy and his father. agreed with appropriateness the of government s a considered the personal However, the district court position within-guidelines regarding sentence. While the the district court did not explicitly address or reject each issue raised by Dendy, the court s statements during sentencing make it clear that the court considered Dendy s circumstances when imposing the sentence. the arguments raised at sentencing, 9 we individualized Given the nature of conclude that the district court adequately explained the basis for its withinguidelines sentence. propriety of See lesser Johnson, 587 justification F.3d where at 639 guidelines (noting sentence already reflects individualized circumstances); see also United States v. Wood, 587 F.3d 882, 884 (8th Cir. 2009) (holding, in the context of a within-guidelines sentence, that not every reasonable argument advanced by a defendant requires a specific rejoinder by the judge (internal quotation marks omitted)). For court s the foregoing explanation, individualized and sentence imposed. reasons, though adequate we not to hold that lengthy, justify the was the district sufficiently within-guidelines It is clear that the district court heard and considered the respective arguments and had a reasoned basis for rejecting Dendy s request for a downward variance and instead imposing a sentence at the bottom of the guidelines range. Accordingly, we find no procedural error attributable to the district court s explanation of Dendy s sentence. IV. Dendy next argues that his sentencing proceeding was tainted by the district court s statement: [F]rankly the Fourth Circuit is pushing us back into the guidelines. are. statement J.A. 66. raises Specifically, the serious Dendy possibility 10 They really contends that that the this district court felt sentence. At it was being pressured Br. of Appellant at 11. the outset, we to impose a guidelines We disagree. recognize that it is procedurally unreasonable for a sentencing court to treat the guidelines as mandatory. See United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Likewise, it is procedural error for a district court to presume that a sentence within the guidelines is reasonable or appropriate in a given case. Nelson v. United States, 129 S. Ct. 890, 892 (2009) (per curiam); Rita, 551 U.S. at 351; Raby, 575 F.3d at 381. We refer to a presumption in favor of a guidelines sentence as a Rita presumption, after the Supreme presumptions Court by decision sentencing that rejected the use Rita, 551 U.S. courts. of such at 351 (holding that the sentencing court does not enjoy the benefit of a legal apply ); presumption that the 597 F.3d Mendoza-Mendoza, presumption in favor of a Guidelines at Guidelines 217 sentence should (referring sentence as to a any Rita presumption ). A sentencing court does not apply a Rita presumption merely by using the guidelines to orient its thinking or by selecting a guidelines sentence. See Mendoza-Mendoza, 597 F.3d at 217. Furthermore, there is no impermissible Rita presumption if the appellate regard court the concludes advisory that the guidelines 11 sentencing range as court did not presumptively reasonable, even if stray language in the sentencing court s discussion, standing alone, could give the impression that a presumption was used. should avoid the Id. at 218. use of Although a sentencing court words like presumption and obligation with respect to the guidelines, it is what a court actually did that is important on appeal, not whether a remark here or there, removed from the larger context in which it was made, is on some list of forbidden phrases. quotation marks omitted). Id. (internal A sentencing court that did what it was supposed to do [by] hearing out both sides and making an individualized assessment in light of § 3553(a) should not be vulnerable to claims that it applied a Rita presumption. Id. Here, when we consider the district court s statement in its full context, it is clear that the district court treated the guidelines reasonable. neither as mandatory nor as presumptively Immediately following the remark in question, the district court explicitly referred to the sentencing guidelines as advisory rather than mandatory. Moreover, the fact that the district court adopted the government s argument as to the effect of the § 3553(a) factors, after acknowledging its own consideration of those factors, shows the court s awareness of the latitude it possessed to determine an appropriate sentence. The district court never spoke in terms of a presumption or words of an equivalent effect. We accordingly decline Dendy s 12 invitation to read a Rita presumption into the district court s ambiguous offhand remark. The district court s use of the word pushing does not indicate that the district court believed that it was obligated to impose a guidelines sentence. at 219 (holding that district court accorded Cf. id. guidelines an impermissible quasi-mandatory effect with its statement that it was obligated to impose a Guidelines sentence notwithstanding its disagreement with that sentence); Raby, 575 F.3d at 377 (holding that district court improperly presumed reasonableness of a within-guidelines sentence based on its comments that Guidelines sentences are always reasonable and are presumed always sentence reasonable was and that extremely imposing difficult, a if outside-guidelines not impossible ). Placing the district court s comment in the context here, we do not understand the district court to have intended the word pushing to confer a quasi-mandatory effect on the guidelines, especially when the court described the guidelines as advisory just 15 words later. In court s bearing light of statement on the reasonableness. these considerations, as stray a sentencing remark we that decision or view the ultimately its district had no procedural We therefore conclude that the district court s statement did not constitute procedural error. 13 V. For the foregoing reasons, sentence was procedurally reasonable. we conclude that Dendy s We therefore affirm. AFFIRMED 14

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