US v. Michael Greene, No. 13-4875 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4875 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL GREENE, a/k/a Mike, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:09-cr-00039-FDW-5) Submitted: July 15, 2014 Decided: August 18, 2014 Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins, Amy E. Ray, Assistant United States Attorneys, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After a jury trial, Michael Greene was convicted of one count of conspiracy to distribute and possess with intent to distribute one or more controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846, 851 (2012), and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 1951 (2012). In his initial appeal, Greene s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious arguments for appeal. During the pendency of the appeal, the Government revealed that one of its trial witnesses had engaged in misconduct, including taking evidence relevant to Greene s trial. took no position on this issue, because In our decision, we Greene had filed a motion for a new trial in the district court on the same basis. Thus, we determined that the district court should address the issue in the first instance. In reviewing Greene s remaining arguments, we affirmed the convictions but vacated the sentence and remanded for resentencing in light of the rule announced in Dorsey v. United States, 132 S. Ct. 2321 (2012). On remand, the district court denied Greene s motion for a new trial without an evidentiary hearing. The court resentenced Greene to forty years imprisonment for the drug conspiracy and twenty years imprisonment conspiracy to run consecutively. 2 for the robbery In the present appeal, Greene challenges his sentence and the court s decision not to have an evidentiary hearing on his motion for a new trial. We affirm. We review a sentence for reasonableness, applying a deferential abuse-of-discretion States, 552 U.S. 38, 46 (2007). district court including committed improper no standard. Gall v. United We must first ensure that the significant calculation of the procedural advisory error, Sentencing Guidelines range, insufficient consideration of the § 3553(a) factors, and inadequate explanation of the sentence imposed. Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In announcing a sentence, the district court is not required to robotically tick through § 3553(a) s every subsection, particularly when imposing a within-Guidelines sentence. 2011) United States v. Powell, 650 F.3d 388, 395 (4th Cir. (internal quotation however, conduct an sentence and lower imposed sentence marks omitted). individualized rejection based on of § 3553. The assessment arguments Lynn, court must, justifying for 592 a the higher F.3d at or 584 (internal quotation marks omitted). The district court must provide sufficient explanation to demonstrate that it considered the parties arguments and ha[d] a reasoned decisionmaking Rita v. United basis for authority. States, 551 exercising Lynn, 592 F.3d U.S. 338, 356 3 [its] at own 576 (2007)). legal (quoting Such explanation is required to promote the perception of sentencing and to permit meaningful appellate review. 552 U.S. at 50. fair Gall, We apply a presumption of reasonableness on appeal to a within-Guidelines range sentence. Rita, 551 U.S. at 347; see United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007) ( A sentence within the proper Sentencing Guidelines range is presumptively reasonable. ) (citation omitted). We find no error with the district court s imposition of sentence. The district court incorporated many of the findings from the first sentencing and addressed fully Greene s argument for a thirty-year sentence. We have considered Greene s arguments made in this appeal and conclude that the arguments are without merit. Greene claims that he was entitled to an evidentiary hearing on his motion for a new trial. We review the district court s decision in this regard for abuse of discretion. States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). United Because the court was very familiar with the trial evidence and the grounds Greene was asserting for a new trial, the court did not abuse its discretion declining to have an evidentiary hearing. United States v. Hamilton, 559 F.2d 1370, 1373 74 (5th Cir. 1977). Accordingly, we affirm the sentence and the court s denial of Greene s motion for a new trial. oral argument because the facts 4 and legal We dispense with contentions are adequately presented in the materials before this Court and argument would not aid the decisional process. AFFIRMED 5
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