US v. Tony Commander, No. 12-4749 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4749 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TONY TYRELL COMMANDER, a/k/a Mook, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (2:11-cr-00031-FL-1) Submitted: April 22, 2013 Decided: May 13, 2013 Before DAVIS, KEENAN, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. C. Burell Shella, SHELLA, HARRIS & AUS, PC, Durham, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tony imposing a Tyrell Commander sentence 360-month appeals the following criminal his judgment guilty plea to conspiracy to distribute and possess with intent to distribute 280 grams of cocaine base. On appeal, Commander s 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 sentencing Commander. the court abused its discretion in Commander was informed of his right to file a supplemental pro se brief but has not done so. Government has declined to file a response brief. The We affirm. We review a sentence for reasonableness, applying a deferential abuse-of-discretion States, 552 U.S. 38, 51 (2007). district court including committed improper no standard. Gall United We must first ensure that the significant calculation v. of procedural Guidelines the error, range, insufficient consideration of the 18 U.S.C. § 3553(a) (2006) factors, and imposed. United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). must inadequate explanation of the If we find the sentence procedurally reasonable, we also examine the substantive reasonableness of considering the totality of the circumstances. at 51. greater sentence The than sentence imposed necessary, must to 2 be satisfy the Gall, 552 U.S. sufficient, the sentence, but not purposes of sentencing. 18 See U.S.C. § 3553(a). A within-Guidelines sentence is presumed reasonable on appeal, and the defendant bears the burden to rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). We discern no abuse of discretion here. court properly calculated Commander s The district Guidelines range, addressed the parties sentencing arguments, and engaged in a thorough balancing of the § 3553(a) factors. a sentence within the statutory and The court imposed Guidelines ranges and specifically grounded the sentence in Commander s history and characteristics, the seriousness of the offense, and the need for deterrence appropriately sentences, (2011), see while and protection credited U.S. Commander Sentencing selecting of a the for public. his Guidelines sentence at Guidelines range, as requested by counsel. the The prior Manual bottom court state § 5K2.23 of the We further conclude, based on the factors adduced at sentencing, that Commander did not rebut the presumption of reasonableness accorded his withinGuidelines sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal with regard to either Commander s conviction or his sentence. 3 We therefore affirm the district court s judgment. This court requires that counsel inform Commander, in writing, of the right to petition the Supreme Court of the United States for further review. If Commander requests that a petition be 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 Commander. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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