Reversed by Supreme Court, filed January 26, 2009
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAWRENCE W. NELSON, a/k/a Zikee,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 07-7380)
Submitted: April 23, 2008 Decided: May 9, 2008
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher A. Davis, DAVIS LAW OFFICES, Clarksburg, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before us on remand from the United States
Supreme Court for further consideration in light of Rita v. United
States, 127 S. Ct. 2456 (2007). In United States v. Nelson, 237 F.
App’x 819 (4th Cir. 2007), vacated, 128 S. Ct. 1124 (2008), we
affirmed Lawrence W. Nelson’s 360-month sentence imposed by the
district court after a jury convicted Nelson of conspiracy to
distribute and possess with intent to distribute more than fifty
grams of crack cocaine, in violation of 21 U.S.C. § 846 (2000).
After reviewing Nelson’s appeal in light of Rita, we affirm.*
In Rita, the Supreme Court held that “a court of appeals
may apply a presumption of reasonableness to a district court
sentence that reflects a proper application of the Sentencing
Guidelines.” 127 S. Ct. at 2462. The Court stressed “that the
presumption . . . is an appellate court presumption.” Id. at 2465.
Importantly, “the sentencing court does not enjoy the benefit of a
legal presumption that the Guidelines sentence should apply.” Id.
In sentencing a defendant after United States v. Booker,
543 U.S. 220 (2005), a district court must engage in a multi-step
process. First, the court must correctly calculate the appropriate
advisory guidelines range. Gall v. United States, 128 S. Ct. 586,
596 (2007) (citing Rita, 127 S. Ct. at 2465). The court then must
*
In the prior appeal, Nelson also challenged his conviction on
several grounds. We reinstate our prior opinion affirming his
conviction. See Nelson, 237 F. App’x at 820-21.
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consider that range in conjunction with the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Id. The court “may
not presume that the Guidelines range is reasonable” but, rather,
“must make an individualized assessment based on the facts
presented” in determining an appropriate sentence. Id. at 596-97.
The district court also must “adequately explain the chosen
sentence to allow for meaningful appellate review.” Id. at 597.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Id.; see also United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate
court:
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
adequately explain the chosen sentence--including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard. When
conducting this review, the court will, of course, take
into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.
Gall, 128 S. Ct. at 597.
Here, Nelson asserts that the district court applied the
guidelines in a mandatory fashion. He relies on the district
court’s statement at sentencing “that ‘the guidelines are advisory
but under the case law of the Fourth Circuit Court of Appeals . . .
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the Guidelines are considered presumptively reasonable . . . . That
means that unless there’s a good reason in the factors that I just
reviewed with you, the Guideline sentence is the reasonable
sentence . . . .’”
Although Nelson asserts that the district court treated
the guidelines as mandatory, we find, taking the district court’s
comments at sentencing as a whole, the court did not do so. See
United States v. Go, 517 F.3d 216, 218-20 (4th Cir. 2008). As in
Go, the district court in Nelson’s case understood that the
guidelines were advisory and that it could impose a sentence
outside of the guidelines range. For example, the district court
considered the arguments from Nelson and his witnesses, the
advisory guideline range, and the factors in § 3553(a), noting that
Nelson was convicted of a crack offense, was a leader in the
offense, possessed a firearm, had a significant criminal history,
and had made laudable efforts at self-rehabilitation. Given the
circumstances of Nelson’s case, however, the district court
exercised its discretion not to vary from the advisory guideline
range and decided to impose a sentence at the bottom of the range.
We therefore find that the district court did not procedurally err
in sentencing Nelson. See Go, 517 F.3d at 218-20.
Accordingly, we affirm the 360-month sentence imposed by
the district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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