US v. Todd Spencer, No. 10-4878 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4878 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TODD ALLEN SPENCER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:10-cr-00021-RBS-FBS-1) Submitted: May 31, 2011 Decided: June 14, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark Diamond, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Scott W. Putney, Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Todd Allen Spencer appeals his conviction and sentence based on his guilty plea to one count of escaping from custody, in violation of 18 U.S.C. § 751(a) (2006). We affirm. On appeal Spencer first contends that his plea was unknowing and involuntary because the district court misrepresentations of law and fact at his plea hearing. made Because Spencer withdrew his motion to withdraw his guilty plea in the district court and did not raise any objections during the Rule 11 plea colloquy, the plea colloquy is reviewed for plain error. United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; and (3) the error affected his Olano, 507 U.S. rights are affected influenced impaired his the substantial 725, 732 if (1993). the defendant s ability to rights. court A defendant s determines decision evaluate United with to that plead eyes open States v. substantial the error guilty the attendant risks of accepting criminal responsibility. and direct United States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal quotation marks omitted); see also Martinez, 277 F.3d at 532 (holding that defendant must demonstrate he would not have pled guilty but for the error). Our review of the record indicates 2 that the district court did not err, much less plainly so, in accepting Spencer s plea. Next Spencer contends that the district court erred in failing to adequately consider the statutory sentencing factors and to adequately state its reasons for the chosen sentence. This court reviews a sentence for reasonableness, applying an Gall v. United States, 552 U.S. abuse of discretion standard. 38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). for In so doing, the court first examines the sentence significant calculate (or procedural improperly error, including calculating) the failing Guidelines to 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 Gall, 552 U.S. at 51. sentence. required to robotically tick The district court is not through § 3553(a) s every subsection. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the district court must place on the record an individualized assessment based on the particular facts of the case before it. need not be elaborate or This individualized assessment lengthy, but it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review. United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 3 U.S. at 50) (internal footnote omitted). considers the substantive A reviewing court then reasonableness of the sentence imposed, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. After reviewing the record, we conclude that Spencer s sentence was both procedurally and substantively reasonable. * Lastly, Spencer claims that the district court failed to depart pursuant to U.S. Sentencing Guidelines Manual § 5K2.13 (2009) because it did not understand the extent of its authority to do so. An appellate court lacks the authority to review a sentencing court s denial of a downward departure unless the court failed to understand its authority to do so. United States v. Herder, 594 F.3d 352, 362 (4th Cir. 2010) (internal quotation marks omitted). Because the district court clearly understood its authority to depart from the Guidelines, we lack authority to review this claim. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately * presented in the materials In concluding that the basis for the district court s chosen sentence articulated at the sentencing hearing fully satisfied Gall s requirements, we reject Spencer s argument that the court s failure to also prepare a written statement explaining its decision to sentence him outside of the applicable Guidelines range constitutes reversible error. 4 before the court and argument would not aid the decisional process. AFFIRMED 5
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