US v. Rashard Wilson, No. 14-4226 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4226 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RASHARD WILSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. (8:12-cr-00086-RWT-5) Submitted: October 31, 2014 Decided: December 22, 2014 Before WYNN and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael F. Smith, Victoria S. Palmer, THE SMITH APPELLATE LAW FIRM, Washington, D.C., for Appellant. Arun G. Rao, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rashard sentence Wilson appeals imposed following his his conviction guilty plea and to 235-month conspiracy to distribute and possess with intent to distribute one kilogram or more of phencyclidine (“PCP”), twenty-eight grams or more of cocaine base, (2012). On and heroin, appeal, in counsel violation has of filed 21 a U.S.C. brief § 846 pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues for appeal but questioning whether (1) Wilson’s appellate waiver is enforceable, (2) his sentence is unreasonable on multiple grounds, breached the plea agreement. and (3) the Government Wilson was notified of his right to file a pro se supplemental brief but has not done so. Government has declined to file a response. Counsel first argues that the The We affirm. court inaccurately advised Wilson regarding the appellate waiver provision in his plea agreement, rendering the waiver unenforceable. We need not reach this issue, as the Government has not sought to enforce the waiver, sponte. and we decline to enforce appellate waivers sua See United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005); see also United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (recognizing that, in Anders appeal with appellate waiver, Government’s failure to respond “allow[s] this court to perform the required Anders review”). 2 Counsel sentence. next raises several challenges to Wilson’s We review a sentence for reasonableness, applying “a deferential abuse-of-discretion States, 552 U.S. 38, 41 (2007). standard.” Gall v. United We “must first ensure that the district court committed no significant procedural error,” such as improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors, and inadequate explanation of the sentence imposed. at 51. Gall, 552 U.S. In assessing Guidelines calculations, we review factual findings for unpreserved clear error, arguments for legal plain conclusions error. de United novo, and States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). If we find no procedural error, we examine the substantive reasonableness of a sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51. The sentence imposed must be “sufficient, but not greater than necessary,” to satisfy the goals of sentencing. on appeal that a See 18 U.S.C. § 3553(a). within- substantively reasonable. or below-Guidelines Susi, 674 F.3d at 289. We presume sentence is The defendant bears the burden to “rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). 3 Counsel questions whether the trial court erred in imposing the career offender Guidelines enhancement because his Maryland conviction for possession with intent to distribute PCP was not a proper career offender predicate in Descamps v. United States, 133 S. Ct. 2276 (2013). argument unpersuasive, as offender enhancement, and, clearly qualifies conviction substance offense.” See Wilson in stipulated any as U.S. event, a of We find this to his predicate Sentencing light the career statute of “controlled Guidelines Manual (“USSG”) § 4B1.2(b) (defining controlled substance offense); Md. Code Ann., Crim. Law, § 5-602 (LexisNexis 2012) (criminalizing distributing or possessing with intent to distribute controlled dangerous substance). Counsel also questions whether the court erred in considering factors other than Wilson’s substantial assistance in determining the extent of his downward departure. Government has moved for a downward departure Where the under USSG § 5K1.1, the court “has broad discretion in deciding whether to depart downward and to what extent.” 191 F.3d 488, 492 (4th Cir. 1999). provides a non-exclusive list of United States v. Pearce, Guidelines Section 5K1.1(a) factors the district court should consider in ruling on a downward departure motion. district court is required to conduct an “individualized qualitative examination” of the defendant’s cooperation. 4 The United States v. Hill, 70 F.3d 321, 325 (4th Cir. 1995). “[A]ny factor considered by the district court on a § 5K1.1 motion must relate to the ‘nature, extent, and significance’ of the defendant’s assistance.” United States v. Pearce, 191 F.3d 488, 492 (4th Cir. 1999). However, “[t]he nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis.” USSG § 5K1.1 cmt. (background). Our review of the record reveals no error court’s consideration of Wilson’s relative assistance. in the Although it is not one of the factors enumerated in USSG § 5K1.1(a), comparison of codefendants Wilson’s is contribution directly related to with the that nature, of extent, his and significance of Wilson’s assistance and relevant to several of the enumerated factors. conclude the determining court the See USSG § 5K1.1(a)(1), (3). did extent not of abuse the its broad departure based Thus, we discretion in in part on imposed a Wilson’s relative assistance. Counsel substantively next questions unreasonable whether sentence the because court his sentence was greater than that of his codefendants. As counsel concedes, however, to the court considered the need limit sentencing disparities but concluded that Wilson’s higher Guidelines range was warranted by his extensive criminal history and resulting 5 career offender status. Because any disparity in Wilson’s sentence was not unjustified, his sentence was not substantively unreasonable on this basis. Finally, counsel also questions whether the Government breached the plea agreement when it agreed not to rely on Wilson’s prior felony drug conviction to enhance his mandatory minimum sentence, but later relied on that conviction to argue for the career offender enhancement. We conclude this argument is to meritless. Wilson stipulated the career offender enhancement, and the Government did not obligate itself not to rely on Wilson’s prior convictions for purposes other than the statutory held only sentencing to enhancement. those promises it Because actually the made Government in the is plea agreement, United States v. Dawson, 587 F.3d 640, 645 (4th Cir. 2009), we discern no breach of the plea agreement. In Guidelines sum, range the and court adopted properly the calculated Government’s downward departure under USSG § 5K1.1. Wilson’s request for a The court provided a detailed explanation for the sentence it imposed, grounded in the § 3553(a) factors. reasonableness accorded Wilson does not rebut the presumption of his below-Guidelines sentence. Susi, 674 F.3d at 289; Montes-Pineda, 445 F.3d at 379. Government did not breach the plea conclude the sentence is reasonable. 6 agreement. We See And the therefore In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Wilson’s conviction and sentence. This court requires that counsel inform Wilson, in writing, of the right to petition the Supreme Court of the United States for further review. If Wilson 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 Wilson. 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 7

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