US v. Shi Dong, No. 12-4170 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4170 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHI BIN DONG, Defendant - Appellant.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-00085-CCE-3) Submitted: November 29, 2012 Decided: December 11, 2012 Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Charles L. White, Greensboro, Greensboro, North Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Shi Bin Dong appeals from his convictions and 46-month sentence entered pursuant to his guilty plea to conspiracy to commit access device Dong s counsel has California, 386 meritorious issues fraud filed U.S. 738 for and a aggravated brief (1967), appeal pursuant stating but Dong s applying States, the 552 sentence consideration of 38, is 51 both reviewed the correctly for whether no the reasonableness, Gall This procedural v. review and United requires substantive Id.; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). court are v. Neither Dong nor the standard. (2007). reasonableness of the sentence. district Anders there questioning theft. We affirm. abuse-of-discretion U.S. to that district court erred in imposing sentence. Government has filed a brief. identity After determining whether the calculated the advisory Guidelines range, we must decide whether the court considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is free of significant procedural error, we review the substantive reasonableness of the sentence. Lynn, 592 F.3d at 575. 2 Our review of the record shows that the district court correctly calculated Dong s Guidelines range, without objection; analyzed the arguments presented by both sides; and sufficiently explained the Government s States selected request Sentencing sentence. for a The downward Guidelines Manual court departure § 5K1.1 granted under (2011) the United based on Dong s substantial assistance and gave sufficient reasoning for the departure. To the extent Dong argues that the district court selecting erred in the extent decision is unreviewable on appeal. 70 F.3d 321, 324 is only departure imposed in application (4th the of its departure, (holding that if it or law resulted from Based the Guidelines). this See United States v. Hill, 1995) reviewable violation of Cir. of resulted on in extent a an of sentence incorrect foregoing, we conclude that the sentence is procedurally reasonable. Turning sentence, calculated we to the presume Guidelines substantive reasonableness that a sentence range is reasonable. States, 551 U.S. 338, 351 (2007). within a Rita of Dong s properlyv. United Dong s sentence was below the bottom of the applicable Guidelines range and only five months longer than the sentence requested by Dong. Dong has failed to overcome the presumption of reasonableness accorded his sentence because he has not identified any sentencing factor that would warrant a different outcome. See United States v. Susi, 674 3 F.3d 278, 289 (4th Cir. 2012) (holding that a below-Guidelines sentence is entitled to a presumption of reasonableness). In accordance with Anders, we have reviewed the entire record for reversible error and have found affirm Dong s convictions and sentence. none. Thus, we This court requires that counsel inform Dong in writing of his right to petition the Supreme Court of the United States for further review. If Dong requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on Dong. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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