UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISAAC JACOB DEBERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00165-1)
Submitted: March 17, 2009 Decided: April 1, 2009
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica L. Dillon, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isaac Jacob DeBerry appeals his sentence of 103 months
of imprisonment after a guilty plea to distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (2006). DeBerry
claims that the district court erred in including two instances
of uncharged criminal conduct as relevant conduct for sentencing
purposes. Finding no error, we affirm.
Appellate courts review a sentence imposed by a
district court for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007); 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 errors, such as
“‘failing to calculate (or improperly calculating) the
[g]uidelines range, treating the [g]uidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .’”
Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597).
If there are no procedural errors in the sentence, the
appellate court then considers the substantive reasonableness of
the sentence. Gall, 128 S. Ct. at 597. “Substantive
reasonableness review entails taking into account the ‘totality
of the circumstances, including the extent of any variance from
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the [g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting
Gall, 128 S. Ct. at 597). Moreover, the appellate court “must
give due deference to the district court’s decision that the
§ 3553(a) factors . . . justify the extent of the variance.”
Id. at 473-74.
The challenged relevant conduct did not affect
DeBerry’s sentencing range under the advisory guidelines.
DeBerry was sentenced as a career offender. The applicable
advisory guidelines range was therefore based upon DeBerry’s
status as a career offender and the statutory maximum for the
crime to which he pleaded guilty. Thus, the inclusion of the
challenged incidents as relevant conduct had no effect on his
resultant guidelines range or the sentence imposed by the
district court.
We therefore affirm the judgment of the district
court. 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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