US v. Robert Ross, No. 13-4919 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4919 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT EARL ROSS, a/k/a Slim, a/k/a Bandana, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:12-cr-00401-BR-1) Submitted: July 29, 2014 Decided: July 31, 2014 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Earl Ross pled guilty without a plea agreement to conspiracy to distribute and possess with intent to distribute heroin, 21 U.S.C. § 846 (2012), and three counts of distribution of heroin, 21 U.S.C. § 841 (2012). Ross was designated a career offender and, at sentencing, the district court rejected variance. Ross request for a seven-month downward Ross was sentenced at the low end of his advisory Guidelines range to 151 months imprisonment. challenges the substantive reasonableness On appeal, Ross of his sentence, contending that it is greater than necessary to accomplish the goals of 18 U.S.C. § 3553(a) (2012) and that the district court erred in denying his request for a downward variance. Finding no reversible error, we affirm. We review Ross sentence for reasonableness, applying a deferential abuse-of-discretion standard. States, 552 U.S. 38, 51 (2007). substantive circumstances reasonableness, and, if the Gall v. United When reviewing a sentence for we examine sentence is the totality within the of the properly- calculated Guidelines range, apply a presumption on appeal that the sentence is substantively reasonable. United States Mendoza Mendoza, 597 F.3d 212, 216 17 (4th Cir. 2010). v. Such a presumption is rebutted only if the defendant shows that the sentence is unreasonable when measured against the § 3553(a) 2 factors. United States v. Montes Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). We conclude that Ross has failed to overcome the appellate presumption of reasonableness afforded his sentence. In arguing for a downward variance, defense counsel identified several mitigating factors that he contended justified a reduced sentence, and including Ross standing drug long disadvantaged addiction. childhood, The young district age, court acknowledged these considerations as well as the fact that Ross family home had been destroyed twice by fire and that a family member had influenced Ross to take part in a criminal lifestyle. The district court, however, reasonably concluded, in light of Ross gang activity and violent crimes, that a sentence at the bottom of the Guidelines range deterrence, just punishment, and States Jeffery, v. ( [D]istrict determining courts the 631 F.3d have weight satisfied rehabilitation. 669, 679 extremely to be the (4th broad given each need See United Cir. 2011) discretion of the for § when 3553(a) factors. ). Given the presumption of reasonableness that attaches to a within-Guidelines sentence, we find no abuse of discretion in the district court s decision not to vary downward and to impose a sentence Accordingly, we at affirm the the low end of district 3 the Guidelines court s judgment. range. We dispense with contentions are oral argument adequately because presented in the the facts and legal materials before this court and argument would not aid in the decisional process. AFFIRMED 4

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