UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4698
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID M. SUTTON, JR., a/k/a David M. Sutton,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00052-REP)
Submitted: August 28, 2008 Decided: September 25, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John T. Wood, Petersburg, Virginia, for Appellant. Michael Ronald
Gill, Assistant United States Attorney, Michael Cornell Wallace,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David M. Sutton, Jr., appeals from his conviction and
twenty-four month sentence after pleading guilty to making false
statements in a transaction with the Department of Housing and
Urban Development, in violation of 18 U.S.C. §§ 1010, 2 (2000).
Sutton’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), in which he asserts there are no meritorious
issues for appeal, but asks this court to review the reasonableness
of Sutton’s sentence. Sutton was given an opportunity to file a
pro se supplemental brief, but has not done so. Finding no error,
we affirm.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
First, it must calculate the appropriate advisory Guidelines range.
It must then consider the resulting range in conjunction with the
factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008)
and determine an appropriate sentence. Gall v. United States, 128
S. Ct. 586, 596 (2007). We review the district court’s imposition
of a sentence for abuse of discretion. Id. at 597; see also United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This 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
2
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. “Substantive
reasonableness review entails taking into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation
marks and citation omitted). While this court may presume a
sentence within the Guidelines range to be reasonable, we may not
presume a sentence outside the range to be unreasonable. Id.
Moreover, we must give deference to the district court’s decision
that the § 3553(a) factors justify imposing a variant sentence and
to its determination regarding the extent of any variance. Id. at
473-74. “Even if we would have reached a different sentencing
result on our own, this fact alone is ‘insufficient to justify
reversal of the district court.’” Id. at 474 (quoting Gall, 128 S.
Ct. at 597).
At sentencing, Sutton did not object to the findings in
his presentence report or to the Sentencing Guidelines range, which
was calculated at eighteen to twenty-four months. The district
court imposed a sentence at the top of the Guidelines range,
sentencing Sutton to twenty-four months’ incarceration. On appeal,
Sutton contends the district court failed to adequately consider:
3
(1) the assistance he provided to the Government; (2) his drug
addiction; (3) the age and relatively minor nature of his previous
convictions; and (4) the Government’s recommendation that he be
sentenced at the midpoint of the Sentencing Guidelines range.
While Sutton claims the district court failed to adequately
consider these factors in determining his sentence, there is no
evidence to support this assertion, as the district court heard
argument from Sutton and explicitly stated that it had considered
the factors set forth under § 3553(a). See United States v.
Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The district
court noted that while Sutton had no convictions for crimes of
violence, he had a lengthy criminal history indicating a “pervasive
disregard for the law.” See 18 U.S.C.A. § 3553(a)(1).
Furthermore, in consideration of his drug addiction, the district
court ordered Sutton to participate in a program for substance
abuse. See 18 U.S.C.A. § 3553(a)(2)(D). Sutton has failed to
demonstrate his sentence is procedurally unreasonable, as there is
no evidence in the record indicating the district court failed to
consider his arguments. The district court correctly calculated
the advisory Guidelines range and considered the relevant factors
under 18 U.S.C.A. § 3553(a). Therefore, we affirm Sutton’s
sentence.
In accordance with Anders, we have reviewed the record in this
case and have found no meritorious issues for appeal. We therefore
4
affirm Sutton’s conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes 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 the client. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5