US v. Joseph Pettaway, No. 13-4640 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4640 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH MICHAEL PETTAWAY, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. John T. Copenhaver, Jr., District Judge. (3:12-cr-00196-1) Submitted: February 26, 2014 Decided: March 10, 2014 Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for Appellant. Blaire L. Malkin, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Michael Pettaway appeals his conviction and the thirty-nine-month following his sentence guilty imposed plea to by the mailing district a court threatening communication, in violation of 18 U.S.C. § 876(c). Pettaway 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 the district court (1) erroneously denied Pettaway a two-level reduction for acceptance of responsibility, consecutive sentences. to and (2) Pettaway s improperly undischarged ran his state sentence and federal Pettaway was notified of his right to file a pro se supplemental brief but has not done so. declined to file a response brief. The Government has Following a careful review of the record, we affirm. I. We applying an review abuse criminal of sentences discretion States, 552 U.S. 38, 51 (2007). ensure that the district court for standard. reasonableness, Gall v. United In so doing, we must first committed no significant procedural error, such as failing to calculate or improperly calculating the advisory Sentencing Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence 2 based on clearly erroneous explain the chosen sentence. If a sentence facts, or failing to adequately Gall, 552 U.S. at 51. is procedurally reasonable, we then examine its substantive reasonableness, taking into account the totality of the circumstances. United States Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). within the Guidelines range, sentence is reasonable. we presume v. Mendoza If the sentence is on appeal that the United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012). A. Counsel first challenges the district court s decision to deny Pettaway a two-level reduction for acceptance responsibility under U.S. Sentencing Guideline § 3E1.1(a). review this decision for clear error. 485 F.3d 236, 239 (4th Cir. 2007). defendant must establish that has clearly he personal by a the evidence affirmatively accepted States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). Because defendant s court is acceptance in of his and the criminal of United sentencing for To merit this reduction, the conduct. the responsibility We United States v. Dugger, preponderance recognized of best position responsibility, we deference to the district court s determination. F.3d at 239. 3 to evaluate afford a great Dugger, 485 Although issue threats Pettaway against he pleaded his victim. accepted guilty, This responsibility he continued conduct for belies his to his assertion that criminal conduct. Based on the facts before the district court, it did not clearly err in denying the reduction. B. Counsel next challenges the district court s decision to impose this sentence consecutive to Pettaway s undischarged state and federal sentences. to make a concurrent defendant s with The district court has discretion sentence undischarged an federal sentence consecutive previously to or imposed. See 18 U.S.C. § 3584(a); Sester v. United States, 132 S. Ct. 1463, 1468 (2012). In exercising this discretion, the court is statutorily required to consider the § 3553(a) factors. U.S.C. § 3584(b). impose a We review a district court s decision to concurrent discretion. See 18 or consecutive sentence for abuse of See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). Pettaway committed the instant offense shortly after he was convicted and sentenced for committing a similar offense against another victim. Furthermore, he had a long history of sending threatening letters to the victim in this case, and he continued making threats after pleading guilty. In these circumstances, the district court did not abuse its discretion 4 in requiring that Pettaway serve this sentence consecutive to his undischarged state and federal sentences. C. Finally, arguments However, for it a the sentence concluded district at that the a court low considered end sentence at of the the Pettaway s Guidelines. high end was necessary to provide deterrence and protect the public, based on Pettaway s long history of sending threatening letters and in light of district the court timing acted of the within instant its offense. considerable Because the discretion in making this finding, we conclude that Pettaway has not rebutted the presumption of reasonableness that attaches to his withinGuidelines sentence. We thus conclude that Pettaway s sentence is both procedurally and substantively reasonable. II. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Pettaway s conviction and sentence. This court requires that counsel inform Pettaway, in writing, of the right to petition the Supreme Court of the United States for further review. If Pettaway 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 5 representation. Counsel s motion must state that a copy thereof was served on Pettaway. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 6
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