US v. Marcus Broadnax, No. 12-4670 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4670 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCUS ALLEN BROADNAX, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:12-cr-00019-JAB-1) Submitted: February 15, 2013 Decided: February 28, 2013 Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, William S. Trivette, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcus Allen Broadnax pled guilty pursuant to a written plea agreement to one count of possession with intent to distribute U.S.C. § 129.4 grams 841(a)(1) of cocaine (2006), and base, in received a violation sentence of of 21 110 months imprisonment, at the bottom of the applicable Guidelines range. On unreasonably appeal, ran Broadnax the argues federal that sentence the district consecutive court to his undischarged state sentence 1 rather than concurrent with it. We affirm. We deferential States, 552 review a abuse of U.S. sentence 38, for discretion 51 reasonableness standard. (2007). A Gall is procedurally reasonable a v. United reasonableness review includes both procedural and substantive components. sentence under where the Id. district A court committed no significant procedural errors, such as improperly calculating the Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or insufficiently explaining the selected sentence. United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). The substantive reasonableness of a 1 At the time Broadnax was sentenced on this federal offense, he had served only sixteen months on an 88 to 115 month North Carolina state sentence on convictions for multiple felony offenses. 2 sentence is assessed circumstances. in light of the Gall, 552 U.S. at 51. totality of the A sentence that falls within a properly calculated Guidelines range is presumptively reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Section 5G1.3 of the United States Sentencing Guidelines guides the district court s imposition of a sentence on a defendant imprisonment. § 5G1.3 who is U.S. (2011). subject Sentencing Because to an undischarged Guidelines Broadnax s term of Manual, ( USSG ) undischarged sentence pertains to offenses that are not related to the instant federal offense, subsection (c) of § 5G1.3 applies. 2 United States v. Becker, 636 F.3d 402, 407-08 (8th Cir. 2011). Under subsection (c), the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. USSG § 5G1.3(c), p.s. Broadnax asserts that the district court abused its discretion in imposing a consecutive sentence because it did not 2 Broadnax asserts that because the federal crime occurred during the time he was committing the state offenses the crimes constitute a continuing course of conduct. This argument is unavailing. As the Government correctly notes, these crimes were not used as relevant conduct for the instant offense, they occurred over a one year period, and had no common victims, no common controlled substances, and no geographic similarity. 3 properly consider the § 5G1.3(c) factors the concerns enumerated in 18 U.S.C. § 3553(a); the type and length of the prior undischarged sentence; the time served and likely to be served on the undischarged sentence; and the fact that the undischarged sentence may have federal court. been imposed in state See USSG § 5G1.3 cmt. n.3(A). court rather than We disagree. Section 5G1.3(c) first directs courts to consider the § 3553(a) sentencing factors. Here, the served district the court objectives See USSG § 5G1.3 cmt. n.3(A). explicitly of punishment, and deterrence. noted promoting that respect the for sentence the law, The court also stated that it had taken into account the specific circumstances of the offense and the fact that the conduct in the instant case took place within one year of a state conviction. that a served sentence the at the objectives bottom of The court further concluded of the punishment Guidelines and adequately deterrence in this case. With respect to the remaining § 5G1.3(c) factors, the record reveals that the court reviewed the presentence report ( PSR ), which catalogued the type and length of sentences as well as the underlying offense conduct. § 5G1.3 cmt. n.3(A). the prior See USSG Furthermore, the district court considered the arguments of counsel before determining that a consecutive sentence was appropriate. 4 Thus, in the context surrounding [the] district court s explanation of the sentence it imposed on Broadnax, the court properly assessed the relevant factors under § 5G1.3(c) and sufficiently States v. explained Montes-Pineda, the 445 sentence F.3d 375, it imposed. (4th 380 United 2006). Cir. Accord United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011) ( Though the district court did not mention § 5G1.3 specifically, in light of its entire explanation, it is evident that the district court considered § 5G1.3(c) and adequately explained its reasons for applying it when sentencing Hall. ). As this court has emphasized, [a] district court s decision partially to impose a sentence concurrently with, that or runs concurrently consecutively to a with, prior undischarged term of imprisonment is constrained only by its consideration of § 5G1.3(c). United States v. Mosley, 200 F.3d 218, 223 (4th Cir. 1999). the factors Because factors including the the mentioned district guideposts in the court referenced commentary considered in § to those 3553(a) we conclude that the district court did not abuse its discretion by imposing a consecutive sentence in this case. Accordingly, we affirm the district court s judgment. We dispense with oral argument 5 because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6