US v. Lambert Sweat, No. 11-4746 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4746 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAMBERT DORELL SWEAT, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00685-PMD-1) Argued: September 19, 2012 Before TRAXLER, Judges. Chief Judge, Decided: and KEENAN December 11, 2012 and FLOYD, Circuit Affirmed by unpublished per curiam opinion. ARGUED: Cameron Jane Blazer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, South Carolina, for Appellant. Jeffrey Mikell Johnson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, Matthew J. Modica, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lambert Dorell Sweat pleaded guilty to various drug and firearm charges. On appeal, he challenges the reasonableness of his 262-month sentence. Finding no reversible error, we affirm. I. In January 2009, a confidential informant with the Clarendon County Sheriff s Office ( CCSO ) purchased 1.1 grams of cocaine, a bootleg copy of a DVD, and a bottle of liquor from Sweat at Sweat s residence. Several days later, the CCSO executed a search warrant at Sweat s residence, which revealed an additional 18.73 grams of cocaine, 22.89 grams of marijuana, a 12-gauge shotgun and shotgun shells, $4,708 in US currency, 404 counterfeit charged with DVDs, various alcohol, and DVDs. and 79 state bottles offenses of liquor. related to Sweat the was drugs, While on bond for these state charges, Sweat was federally indicted and a bench warrant was issued. The three-count indictment charged Sweat with possession with intent to distribute marijuana and cocaine, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1). 2 When Clarendon County investigators subsequently happened upon Sweat in a Wal-Mart store and attempted to arrest him on the outstanding bench warrant, Sweat eluded the investigators and fled to his home, where he barricaded himself inside. investigators proceeded to Sweat s residence. The After knocking on the door of the residence and announcing their presence proved unsuccessful, the investigators used the public address system from a marked patrol car to demand that Sweat exit his home. At that point, Sweat opened the door, yelled F--- you, and went back inside. A captain with the CCSO then arrived on the scene with tactical equipment and launched several canisters of pepper spray into Sweat s residence. Sweat cursed at the officers again but eventually exited his home and was arrested. securing the residence, law enforcement officers After found an additional .23 grams of cocaine and 216 additional counterfeit DVDs. Sweat ultimately pleaded guilty to each count in the indictment. Sweat s Sentencing Guidelines range was 262 to 327 months imprisonment, which took into account his acceptance of responsibility, see U.S.S.G. § 3E1.1 (2010), and the fact that he qualified as a career offender, see U.S.S.G. § 4B1.1. before and sentence. at He sentencing, did not Sweat challenge sought a application Both below-Guidelines of the career offender Guideline but argued instead that a within-Guidelines 3 sentence would be more than necessary to achieve the sentencing purposes set forth in 18 U.S.C. § 3553(a). Specifically, Sweat argued that he was susceptible to rehabilitation and that he had used his pre-sentence incarceration wisely by completing a drug treatment program, leading Bible studies, and mentoring other inmates. The Guidelines government range and opposed contested any deviation Sweat s below the characterization of himself by emphasizing Sweat s conduct in eluding and cursing at law enforcement officers when they attempted to arrest him. The district court ultimately sentenced Sweat to a bottom-of-theGuidelines sentence of 262 months imprisonment. Sweat now challenges the procedural and substantive reasonableness of this sentence. II. We review a sentence discretion standard. (2007). under a deferential abuse-of- Gall v. United States, 552 U.S. 38, 41 We first ensure that the district court committed no significant procedurally procedural error. unreasonable if, Id. inter at 51. alia, the A sentence district is court fails to recognize its authority to deviate from the Guidelines, see id., or fails to provide an individualized sentence, see United States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). If we find that the sentence is procedurally reasonable, we will 4 then consider its substantive reasonableness, account the totality of the circumstances. at 51. taking into See Gall, 552 U.S. An appellate court may presume that a within-Guideline sentence is substantively reasonable . . . . Carter, 564 F.3d at 330 n.2 (emphasis omitted). III. Sweat argues that the district court procedurally erred at sentencing for two independent reasons. He first contends that the district court failed to recognize its authority to deviate from the Guidelines. Because the Guidelines are effectively advisory, United States v. Booker, 543 U.S. 220, 245 (2005), a sentencing court has Guidelines range in order not greater sufficient, but the discretion to to impose than a deviate sentence necessary, from the that is Kimbrough v. United States, 552 U.S. 85, 111 (2007) (internal quotation marks omitted). A sentencing court that treats the Guidelines range as mandatory, however, commits procedural error. U.S. at 51. procedural sentence. See Gall, 552 Sweat also argues that the district court committed error A by failing district to court provide must make an individualized an individualized assessment and must apply the relevant § 3553(a) factors to the specific circumstances of the case. Carter, 564 F.3d at 328 (internal quotation marks and emphasis omitted). 5 However, when a within-Guidelines sentence is imposed, the individualized assessment need not be elaborate or lengthy, id. at 330, because guidelines sentences themselves are in many ways tailored to the individual and reflect approximately two decades of close attention to federal sentencing policy, United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal quotation marks omitted). The government disputes that the district court failed to provide an adequately individualized sentence and also argues, error would be harmless. F.3d 832, analysis 837-40 to (4th procedural in the alternative, that any such See United States v. Boulware, 604 Cir. 2010) error (applying involving harmless failure to error provide individualized sentence). At sentencing in the instant case, the district court spoke to Sweat at length specific offenses. about his personal circumstances and his In doing so, the court clearly and carefully responded to the arguments presented by defense counsel and by the defendant himself. Defense counsel presented the best reasons she could for a sentence below the Guidelines, but those arguments were, in the final analysis, weak, as in Boulware. Thus, we can safely say that to the extent any error occurred, it was harmless. With respect to the argument that the district court failed to recognize its discretion to decline imposition of a sentence 6 under the career offender Guidelines, as occurred in United States v. Herder, 594 F.3d 352 (4th Cir. 2010), we have reviewed the totality of the court s comments, during the taking of Sweat s plea and at sentencing, and we are satisfied that the court understood its discretion in this regard and understood that it was not bound to follow the Guidelines, even in a career offender context. IV. Sweat s remaining challenge is to the reasonableness of his within-Guidelines sentence. substantive By relying on our decision in United States v. Engle, 592 F.3d 495 (4th Cir. 2010), Sweat unreasonable sentencing contends because factor the that the his district Guidelines sentence court range was relied in exclusion of the other relevant factors. this substantively on a single case to We disagree. the The district court considered a variety of the sentencing factors, and Sweat simply disagrees with how the court evaluated those factors and arrived at the sentence. Therefore, the sentence was substantively reasonable. V. For the foregoing reasons, we affirm Sweat s sentence. AFFIRMED 7

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