US v. Anthony Epperson, No. 12-5050 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5050 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTHONY GILMER EPPERSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:12-cr-00157-NCT-1) Submitted: August 26, 2013 Decided: August 29, 2013 Before DUNCAN and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Ripley Rand, United States Attorney, Graham T. Green, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Gilmer Epperson pled guilty to one count of producing child pornography in violation of 18 U.S.C. ยง 2251(a), (e) (2006). He imprisonment. was He sentenced appeals, to a term contending that of 250 he months was denied allocution and that his sentence is substantively unreasonable. Finding no error, we affirm. Before address the imposing defendant sentence, personally the in court order must to . . permit . the defendant to speak or present any information to mitigate the sentence. satisfied Fed. R. Crim. P. 32(i)(4)(A)(ii). by [m]erely opportunity to speak. affording the The rule is not Defendant's counsel the United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (internal quotation marks omitted); see also United States v. Stuver, 845 F.2d 73, 74 (4th Cir. 1988) (recognizing that the record must reflect that the defendant knew he had a right to speak in mitigation). Because Epperson did district not object regarding allocution in the court, however, any error is subject to review only for plain error. See United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993) (applying plain error analysis to allocution denial). The record discloses that Epperson was provided an opportunity to allocute and that he had ample opportunity to bring mitigating information to the court s attention. 2 While the court asked Epperson questions in an effort to understand his statements, we find no error. This applying an court abuse reviews of a sentence discretion States, 552 U.S. 38, 51 (2007). for standard. reasonableness, Gall v. United In conducting this review, we first consider whether the district court committed significant procedural error. In the we next consider whether the sentence is substantively reasonable. Id. Substantive the reasonableness absence is of such determined error, by considering totality of the circumstances, and if the sentence is within the Guidelines range, reasonableness. this court applies a presumption of United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). We conclude that Epperson s sentence is substantively reasonable. The within-Guidelines sentence is both presumptively reasonable and supported by the totality of the circumstances, including Epperson s history and characteristics, the nature of his offense and the need to protect the public. Accordingly, dispense we with contentions are affirm oral the district argument adequately court s because presented in the the judgment. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3
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