US v. Gabriel Martin, No. 12-4087 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4087 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GABRIEL ELIJAH MARTIN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:11-cr-00048-CCE-2) Submitted: November 6, 2012 Decided: November 9, 2012 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, Winston-Salem, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gabriel Elijah Martin pled guilty pursuant to a plea agreement to two counts of brandishing a firearm during and in relation to a crime § 924(c)(1)(A)(ii) Government s of violence, (2006). motion in After pursuant to violation the U.S. of court 18 U.S.C. granted Sentencing the Guidelines Manual ( USSG ) § 5K1.1, p.s. (2011), and 18 U.S.C. § 3553(e) (2006), Martin imprisonment, was to sentenced run to 63 months consecutively. On and appeal, 225 months counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning whether the district court committed procedural error by failing to consider the factors in USSG § 5K1.1(a) when determining whether to depart more than the sentence reduction requested by the Government. Martin was advised of his right to file a pro se supplemental brief, but he did not do so. We affirm. We review Martin s sentence for reasonableness under a deferential abuse-of-discretion States, 552 U.S. 38, 41 (2007). standard. Gall v. United A sentence is procedurally reasonable if, among other requirements, the court considers the factors in 18 U.S.C. § 3553(a) (2006). 49-51. See Gall, 552 U.S. at However, in determining the extent of a departure below a statutory minimum a district court should look [solely] to the 2 substantial assistance factors listed in [USSG] § 5K1.1(a) . . . and other factors related to that assistance. United States v. Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009) (internal citation omitted); see also United States v. A.B., 529 F.3d 1275, 1285 (10th Cir. 2008) (holding that district court did not have authority to depart any further below statutory minimum after granting § 3553(e) motion and could not consider § 3553(a) factors); United States v. Williams, 474 F.3d 1130, 1130-31 (8th Cir. 2007) (holding that district court may look only to § 3553(e) in going below statutory minimum and not to factors listed in § 3553(a)). Our review of the record leads us to conclude that the district court did not err in its determination of whether to depart more than the reduction requested by the Government. court considered the parties arguments relevant to substantial assistance. (providing non-exhaustive factors). The recommendation cooperation court was and the then procedural E.R. refers to on factors See USSG § 5K1.1(a), p.s. of substantial determined appropriate [Martin] came forward. * list based The given that the the situation assistance Government s nature that of existed the when (E.R. 230); * see USSG § 5K1.1(a)(1), the electronic court. 3 record filed in this (3). The court then correctly noted that, under Hood, it did not have the authority to consider Martin s family and personal history as that substantial information assistance. did While not the relate court to did Martin s mention the § 3553(a) factors, it already had determined the extent of the downward departure based on substantial assistance factors alone, and the additional explanation served only to provide a basis for the sentence in the event that the court had misinterpreted Hood, which it did not. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Martin, in writing, of the right to petition the Supreme review. If Martin Court of requests the that United a States petition for be further filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Martin. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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