US v. Leslie Ferebee, No. 10-4967 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4967 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LESLIE OWEN FEREBEE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:10-cr-00004-BO-1) Submitted: June 23, 2011 Decided: June 30, 2011 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leslie Owen Ferebee pled guilty without a plea agreement to: conspiracy to distribute fifty grams or more of cocaine base and 500 grams or more of cocaine, 21 U.S.C. § 846 (2006) (Count One); distribution of fifty grams or more of cocaine base, 21 U.S.C. § 841(a)(1) (2006) (Count Two); four counts of distribution of a quantity of crack, 21 U.S.C. § 841(a)(1) (Counts Three-Six); and distribution of a quantity of cocaine base and a quantity of cocaine, 21 U.S.C. § 841(a)(1) (Count Seven). He was sentenced to 280 months on each count. The sentences run concurrently. Ferebee now appeals, raising two issues related to his sentence. We vacate and remand for resentencing. I According report (PSR), Sentencing to base his Ferebee s offense Guidelines Manual presentence level was § 2D1.1(c)(2) & investigation 34. See n.10(D) U.S. (2009). Two levels were added based on possession of a firearm. See USSG 36. § 2D1.1(b)(1). However, because His Ferebee adjusted was a offense career level offender, was see USSG § 4B1.1, and the statutory maximum to which he was subject is life in prison, see 21 U.S.C. § 841(b)(1)(A), his offense level was 37. See USSG § 4B1.1. Three levels were subtracted for 2 acceptance total of offense responsibility. See USSG level was 34, therefore § 3E1.1. his Ferebee s criminal history category was VI, and his advisory Guidelines range was 262-327 months. At sentencing, defense counsel requested a sentence of 240 months because Ferebee had undergone a fairly significant change during Government the argued time for a he ha[d] sentence been in in the custody. middle of The Ferebee s Guidelines range. Without affording Ferebee the opportunity to allocute, the court sentenced him to 280 months on each count, to run concurrently. The court offered no rationale for the chosen sentence. II Ferebee unreasonable contends because the that his district explain the selected sentence. sentence court did is procedurally not sufficiently Because Ferebee argued for a sentence different than the one imposed, he preserved his claim, and our review is for abuse of discretion. See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). If we determine that the court abused error was harmless. its discretion, See id. at 576. 3 we will reverse unless the A district court commits procedural sentencing error by failing to adequately explain the chosen sentence. United States, 552 U.S. 38, 51 (2007). In Gall v. evaluating the district court s explanation for the sentence imposed, we have held that, although the district court must consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2011) statutory factors and explain § 3553(a) or the sentence, discuss it every need not factor on explicitly the reference record. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the district court must make an individualized assessment based on the facts presented, and apply the relevant § 3553(a) factors to the specific circumstances of the case before it. United States v. Carter, 564 F.3d 325, 328 (4th (internal quotation marks and emphasis omitted). Cir. 2009) The court must also state in open court the particular reasons supporting its chosen sentence and set forth enough to satisfy us that it has considered the parties arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority. (internal quotation marks and citation omitted). Id. The reasons articulated by the district court need not be couched in the precise language of § 3553(a), as long as the reasons can be matched to a factor appropriate for consideration under that statute and [are] clearly tied to [the defendant s] particular 4 situation. United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). Here, the district court erred by failing to offer any explanation of the selected sentence. Under this circumstance, appellate review is impossible, and the error is not harmless. Accordingly, we must vacate and remand for resentencing. III Ferebee committed also reversible contends error when that it the failed district to opportunity to allocute prior to sentencing. afford court him the See Fed. R. Crim. P. 32(i)(4)(A)(ii); see also Green v. United States, 365 U.S. 301, 305 (1961). Because Ferebee did not object at sentencing to the denial of allocution, our review is for plain error. United States v. Olano, 507 U.S. 725, 731-32 See (1993). To establish plain error, a defendant must show that (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. Id. at 732. Even if these conditions are satisfied, we will exercise our discretion to notice the error only if the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotation marks omitted). The denial of allocution defendant s substantial rights. does not per se affect a United States v. Lewis, 10 F.3d 5 1086, 1092 (4th Cir. 1993). To demonstrate that such denial affected his substantial rights, the defendant must establish that, had he been permitted allocution, his sentence might have See United States v. Cole, 27 F.3d 996, 999 (4th been lower. Cir. 1994). We need not decide whether the denial of the opportunity to allocute affected Ferebee s substantial rights, because, as based the on sentence. previously district discussed, court s resentencing failure to is explain necessary the chosen At resentencing, however, the district court should provide Ferebee the opportunity to address the court prior to imposition of sentence. IV We therefore resentencing. On vacate remand, the the sentence district and court remand should for permit Ferebee to allocute in accordance with Rule 32(i)(4)(a)(ii) and should set forth its reasons for the selected sentence. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED 6

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