US v. Theoharis Toumazatos, No. 13-4444 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4444 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THEOHARIS TOUMAZATOS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:12-cr-00390-D-1) Submitted: October 8, 2013 Decided: October 21, 2013 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael B. Driver, DRIVER LAW FIRM, PA, 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 Unpublished opinions are not binding precedent in this circuit.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: Federal inmate Theoharis Toumazatos pled guilty to possession of a prohibited object, in violation of 18 U.S.C.A. § 1791(a)(2) (West 2006 & calculated Supp. Toumazatos 2013). The court range Guidelines district under the U.S. Sentencing Guidelines Manual (2012) at zero to six months imprisonment and sentenced him to three months imprisonment. On appeal, counsel has California, 386 U.S. meritorious issues district court Toumazatos was filed 738 for abused a (1967), appeal, its informed brief pursuant stating but his that in right to We under a review deferential are whether imposing file supplemental brief, but he has not done so. declined to file a brief. Anders there questioning discretion of to v. no the sentence. a pro se The Government We affirm. Toumazatos sentence abuse-of-discretion for reasonableness standard. United States, 552 U.S. 38, 41, 51 (2007). Gall v. This review entails appellate consideration of both the procedural and substantive reasonableness of the sentence. procedural reasonableness, court properly range, gave calculated the parties we Id. at 51. consider whether the defendant s an opportunity In determining the advisory to district Guidelines argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on clearly erroneous facts, 2 and sufficiently explained the selected sentence. Id. at 49 51. If the sentence is free of significant procedural error, we review it for substantive reasonableness, tak[ing] into account the totality of the circumstances. Id. at 51. If the sentence is within the properly calculated Guidelines range, we apply a presumption on appeal reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). that the sentence is substantively Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) factors. 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) (internal quotation marks omitted). In this case, the district court correctly calculated and from considered the counsel, and allocute. The advisory Guidelines afforded court range, Toumazatos explained that the the heard argument opportunity to within-Guideline sentence of three months imprisonment was warranted in light of the nature and circumstances of Toumazatos offense, his history and characteristics, and the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to afford adequate deterrence to criminal conduct. counsel nor presumption Toumazatos on substantively appeal offers that reasonable. his any grounds within-Guidelines Accordingly, 3 to we Neither rebut the sentence is conclude that the district court did not abuse its discretion in sentencing Toumazatos. Finally, in accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. judgment. We therefore affirm the district court s This court requires that counsel inform Toumazatos, in writing, of the right to petition the Supreme Court of the United States for further review. If Toumazatos requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Toumazatos. 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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