UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWANE EDWARD CHERRY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:03-cr-00316-DKC-1)
Submitted: February 5, 2009 Decided: March 5, 2009
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. James Roos, III, THE LAW OFFICES OF J. JAMES ROOS, III,
Towson, Maryland, for Appellant. Barbara Suzanne Skalla,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a bench trial, Dwane Edward Cherry was found
guilty of possession of a firearm by a convicted felon and
possession of a controlled substance. The district court found
that Cherry was an Armed Career Criminal and that his Guidelines
range was 188-235 months. The court sentenced him to 188 months
in prison. On appeal, Cherry alleged that the district court’s
determination that a juvenile conviction for attempted murder
and use of a handgun was a “violent felony” for Armed Career
Criminal purposes violated his Sixth Amendment rights under
United States v. Booker, 543 U.S. 220 (2005). We agreed and
remanded for resentencing. United States v. Cherry, No. 04-4253
(4th Cir. Aug. 9, 2006) (unpublished).
At resentencing, the parties agreed that Cherry was
not an Armed Career Criminal and that the appropriate Guidelines
range was 92-115 months in prison. After the district court
heard extensive evidence on Cherry’s mental condition, Cherry
argued for a sentence of time served. The Government asserted
that Cherry should be sentenced within the amended Guidelines
range. The district court found that Cherry suffered from a
mental illness, but that his condition did not significantly
impair his ability to reason and control his behavior. Thus,
the court found that Cherry did not qualify for a diminished
capacity or mental condition departure. The court also found
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that the Bureau of Prisons was capable of providing Cherry with
adequate treatment and counseling and that his work and personal
history were not extraordinary enough to warrant a departure.
Nonetheless, the court found that a variance sentence was
appropriate, based on Cherry’s mental condition and his
acceptance of responsibility during the course of his
imprisonment. Thus, the court sentenced Cherry to 72 months in
prison, of which Cherry had 18 months remaining to serve.
On appeal, Cherry’s attorney has filed an Anders *
brief, concluding that there are no meritorious issues for
appeal but questioning whether Cherry’s sentence was reasonable.
Cherry has filed a pro se supplemental brief; however, it is
merely a collection of documents dated prior to his amended
judgment and does not address his final sentence.
We review sentences imposed by district courts for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007). When
sentencing a defendant, a district court must first properly
calculate the Guidelines range. Id. at 596. Next, the court
should give the parties the opportunity to argue for whatever
sentence they deem appropriate. The court is then instructed to
consider the 18 U.S.C. § 3553 (2006) factors in light of the
*
Anders v. California, 386 U.S. 738 (1967).
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parties’ requests with respect to the sentence. United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Upon review, we must first determine whether the
district court committed any significant procedural error, such
as improperly calculating the Guideline range, failing to
consider the statutory factors, or failing to explain the chosen
sentence. Gall, 128 S. Ct. at 597. If we find the sentence is
procedurally sound, we next consider the substantive
reasonableness of the sentence. Id.
Here, the district court properly calculated the
Guidelines range of imprisonment without objection and permitted
counsel to speak at length and present several witnesses. The
court then gave reasons for rejecting various downward
departures. Finally, the court granted a downward variance and
gave lengthy reasoning. Because there was no error in the
application of the Guidelines, the district court considered the
§ 3553 factors, and the court supported the sentence imposed
with appropriate reasoning, there was no abuse of discretion,
and we find that the sentence is reasonable.
Accordingly, we affirm Cherry’s amended 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 that such a petition would be
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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
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