US v. Robert Bove, No. 13-4477 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4477 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT BOVE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:11-cr-00104-RJC-1) Submitted: February 20, 2014 Decided: February 25, 2014 Before DUNCAN, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Marc L. Resnick, Washington, D.C., for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert sentence Bove imposed transportation sexually after of he visual explicit § 2252(a)(1) appeals his pled guilty depictions conduct, (West 135-month, Supp. in to one of and count minors violation 2013), below-Guidelines each engaged of 18 possession of in U.S.C.A. of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C.A. § 2252(a)(4) (West Supp. 2013). Bove argues that his sentence is procedurally unreasonable because he asserts that the district court failed to duly consider his argument that his sentence should be lower based on his low recidivism risk. substantively Bove also unreasonable characteristics, a shorter asserts that his sentence is because given his history and sentence would have achieved the purposes of 18 U.S.C. § 3553(a) (2012). Finding no error, we affirm. Because Bove requested a sentence different than the one imposed, his claim was properly preserved, and this court reviews it standard, for reasonableness reversing unless under . . . an the abuse error of discretion was harmless. United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010) ( By drawing arguments from § 3553 for a sentence different than the one ultimately imposed, an aggrieved party sufficiently alerts the district court of its responsibility to render an 2 individualized explanation addressing those arguments, and thus preserves its claim. ). This review requires consideration of both procedural and substantive reasonableness of a sentence. v. United States, 552 U.S. 38, 51 (2007). assess whether advisory the Guidelines analyzed any district range, arguments court the § by presented Gall This court must first properly considered the calculated the sufficiently explained the selected sentence. 3553(a) the factors, parties, and Id. at 49-50; see Lynn, 592 F.3d at 576 ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 assessment (4th . . Cir. . 2009) must (holding provide a that the rationale individualized tailored to the particular case at hand and [be] adequate to permit meaningful appellate review ) omitted). (internal Although comprehensive, detailed a quotation marks need necessarily court opinion, the not court s and citation issue explanation a must nonetheless be sufficient to satisfy the appellate court that the district court has considered the parties arguments and has a reasoned basis for exercising its own legal decisionmaking authority. United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (brackets omitted). 3 The district court s elaborate or lengthy, however. this court has noted: explanation need not be Carter, 564 F.3d at 330. As Gall was quite explicit that district courts should provide more significant justifications for major departures than for minor ones. But when a district court does not depart or vary at all, it may provide a less extensive, while still individualized, explanation. United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009) (internal citations, quotation marks and brackets omitted). If there is no procedural error, we may then review the substantive reasonableness of the sentence, tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation marks and citation substantive omitted). reasonableness, In we analyzing consider the a sentence sentence for under a deferential abuse-of-discretion standard, whereby we must defer to the trial court and can reverse a sentence only if it is unreasonable, even if the sentence choice of the appellate court. 722 F.3d omitted). 583, We 590 (4th apply a Cir. would not have been the United States v. Yooho Weon, 2013) presumption (internal of quotation reasonableness marks to a sentence within or below a properly calculated Guidelines range. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). 4 We reject procedurally Bove s unreasonable argument and that should be his sentence because vacated is the district court allegedly failed to mention counsel s argument that he presented a low risk of reoffending. look to the entirety of Bove s This court may sentencing proceeding to determine whether the district court understood his argument for a reduced sentence but had reasons for rejecting that argument. See Rita, 551 U.S. at 344-45, 358-59. record that the district court: It is apparent from the (1) engaged in discussion about counsel s arguments for a lesser sentence; (2) fully considered counsel s arguments, including his argument that Bove s low risk of reoffending argument that required Bove s a lesser alleged sentence; low recidivism (3) rejected risk the required a lesser sentence; and (4) thoroughly considered and discussed the § 3553(a) factors Accordingly, district we court. it find believed no Cf. justified procedural Lynn, 592 Bove s sentencing F.3d at sentence. error 583-85 by the (finding reversible error where the district court gave no indication that [it] considered the defendant s nonfrivolous arguments prior to sentencing him and stated only that it found Lynn s sentence to be fair and appropriate and consistent with the requirements of § 3553(a) before imposing (internal ellipses and brackets omitted). 5 Lynn s sentence) We also reject Bove s argument that his 135 month below-Guidelines range sentence was substantively unreasonable and greater than necessary to achieve § 3553(a) s purposes. After considering the district court s thorough explanation for the chosen sentence and its explicit discussion of the § 3553(a) factors, and after considering the parties arguments, we find that Bove has failed to rebut the appellate presumption of reasonableness this court affords his below-Guidelines sentence. Susi, 674 F.3d at 289. Accordingly, we conclude that Bove s sentence is not substantively unreasonable. Based on the foregoing, we affirm the district court s judgment. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

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