US v. Kevin Dickerson, No. 10-4906 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4906 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN NEVOYLE DICKERSON, a/k/a Hebe, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. G. Steven Agee, Circuit Judge, sitting by designation; Samuel G. Wilson, District Judge. (7:10-cr-00011-SGW-1) Submitted: May 31, 2011 Before KING and Circuit Judge. DIAZ, Decided: Circuit Judges, and June 22, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Larry W. Shelton, Assistant Federal Appellant. Timothy Wolthuis, Assistant for Appellee. Federal Public Defender, Fay F. Spence, Public Defender, Roanoke, Virginia, for J. Heaphy, United States Attorney, Donald R. United States Attorney, Roanoke, Virginia, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin Nevoyle Dickerson pled guilty to conspiracy to distribute and possess with intent to distribute more than 1000 grams of heroin, in violation of 21 U.S.C. § 846 (2006), and attempt to violation distribute of § 846. more The than court 100 sentenced offender to 262 months imprisonment. sentence is procedurally grams of him heroin, as a in career Dickerson argues that his unreasonable because the court (1) presumed the reasonableness of a within-Guidelines sentence, (2) failed to explain why it rejected his argument that his extraordinary cooperation warranted a greater than three-level sentence reduction, and (3) failed to explain why it rejected his arguments that the career offender Guidelines should not apply. Finding no error, we affirm. In sentence, determining the consider whether we calculated the U.S.C. 3553(a) § presented by advisory the the Guidelines (2006) factors, parties, Gall procedural v. and reasonableness district range, court sufficiently United States, any the 18 arguments explained 552 a properly considered analyzed of U.S. 38, the selected sentence. 51 (2007). Regardless of whether the district court imposes an above, below, or within-Guidelines sentence, it must place on the record an individualized assessment based on the particular facts of the case before it. United States v. Carter, 564 F.3d 2 325, 330 (4th Cir. 2009) (internal quotation marks omitted). The explanation must be sufficient to allow for meaningful appellate review, id. at 328, such that the appellate court Id. at 329 need not guess at the district court s rationale. (internal quotation marks omitted). Dickerson asserts that the district court improperly applied a sentence. presumption of reasonableness in fashioning his In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court held that an appellate court may presume that a within-Guidelines sentence is reasonable. Id. at 351. We have recognized, however, that Rita presumptions are forbidden in sentencing courts . . . [because] they confer the force of law upon the Guidelines. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). presumption of If the district court applies a reasonableness in the initial sentencing proceeding, the sentence is procedurally unreasonable. 216-17. Id. at On the other hand, we have explained that a district court does not impermissibly apply a presumption in favor of a Guidelines sentence if it use[s] the Guidelines to orient its thinking and the process of sentencing begins with correctly calculating the Guidelines sentencing range. does a district Guidelines court sentence in violate the case Rita or simply by by deeming fitting or appropriate sentence for the case. 3 Id. at 217. Nor selecting it Id. the a most Our review of the record leads us to conclude that the sentencing court considered its impermissible obligations presumption under that without any Guidelines a § 3553(a) sentence was reasonable. Next, Dickerson claims that the district court failed to explain why it rejected his arguments for a below-Guidelines sentence and that the career offender Guidelines should not be applied to him. Dickerson preserved these issues for appeal [b]y drawing arguments from § 3553 for a sentence different United States v. Lynn, 592 than the one ultimately imposed. F.3d 572, 578 (4th Cir. 2010). Id. at 581, 583-84. of discretion. procedurally Thus, our review is for an abuse erred and thus abused If the district court reverse unless the error is harmless. its The whole, court s indicate that Dickerson s arguments. statements it discretion, we must Id. at 581, 585. at considered sentencing, and taken rejected as each a of The court determined that, based upon the facts before it, Dickerson deserved a low-end Guidelines sentence. On the record, we conclude without difficulty that the district court did not procedurally err. The judgment of the district court is affirmed. dispense with oral argument because 4 the facts and We 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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