US v. Tonyal Locklear, No. 14-4287 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4287 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TONYAL LOCKLEAR, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Senior District Judge. (1:13-cr-00231-JAB-3) Submitted: October 28, 2014 Decided: November 4, 2014 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Harvey A. Carpenter IV, THE LAW OFFICES OF HA (ALEC) CARPENTER IV, Greensboro, North Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tonyal Locklear appeals his conviction and thirty-three month sentence imposed following his guilty plea to possession of counterfeit federal reserve notes, in violation of 18 U.S.C. § 472 (2012). On appeal, Locklear’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 abused its discretion in (1) denying Locklear’s request for a sentence at the bottom of the Guidelines sentence be range, served and in (2) the declining North to Carolina order that the Department of Corrections, concurrently with his undischarged state sentence. Locklear was notified of his right to file a pro se supplemental brief but has not done so. a response brief. We The Government has declined to file For the reasons that follow, we affirm. review Locklear’s sentence for reasonableness, applying “a deferential abuse-of-discretion standard.” United States, 552 U.S. 38, 41 (2007). that the district court committed no Gall v. We “must first ensure significant procedural error,” including 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. Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). 2 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. See 18 U.S.C. § 3553(a). We presume that a within-Guidelines sentence is substantively reasonable, and the defendant bears the burden to “rebut the presumption by demonstrating that the sentence is unreasonable when measured against the § 3553(a) factors.” 445 F.3d 375, 379 (4th Cir. United States v. Montes-Pineda, 2006) (internal quotation marks omitted). Counsel first questions whether the court abused its discretion in imposing a sentence of thirty-three instead of the thirty-month sentence he requested. months, We conclude Locklear has failed to rebut the presumption of reasonableness accorded his within-Guidelines sentence. See id. Turning to Locklear’s request that his sentence run concurrently with the state sentence he was already serving, “if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a) (2012); see U.S. Sentencing Guidelines Manual (“USSG”) § 5G1.3(c). court is determining required to consider the whether to run sentences the 3 § 3553(a) The factors in consecutively or concurrently. also 18 U.S.C. § 3584(b). enumerates a determination. series of The Guidelines commentary factors USSG consideration cmt. n.3(A). these of § 5G1.3 factors, while 724 F.3d to recommended, required by either statute or § 5G1.3(c). Nania, relevant 824, 838 (7th Cir. this Specific is not See United States v. 2014); see also United States v. Rodriguez, 715 F.3d 451, 451-52 (2d Cir. 2013), cert. denied, 134 S. Ct. 1042 (2014). Here, the court complied consider the § 3553(a) factors. not specifically address with its obligation to While the sentencing court did the USSG § 5G1.3 factors, this information was before the court when it sentenced Locklear, and we perceive no error. Finally, with regard to Locklear’s request that he serve his sentence in the North Carolina Department of Adult Corrections, the Bureau of Prisons has sole authority to determine whether a federal prisoner’s sentence is to be served in federal or state court. Tapia v. United States, 131 See 18 U.S.C. § 3621(b) (2012); S. Ct. 2382, 2390-91 (2011). Therefore, this claim entitles Locklear to no relief. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Locklear’s conviction and sentence. This court requires that counsel inform Locklear, in writing, of the 4 right to petition the Supreme Court of the United States for further review. If Locklear 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 Locklear. 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 5
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