United States v. Kelly

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4954

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

KIM SUNSIK KELLY, a/k/a extremeksk,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00024-LHT-1)

Submitted: March 26, 2009 Decided: April 10, 2009

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ross H. Richardson,
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Donald David
Gast, Amy Elizabeth Ray, Assistant United States Attorneys,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Kim Sunsik Kelly timely appeals from the 210-month

sentence imposed following his guilty plea to one count of

attempting to entice and coerce an individual he believed to be

a minor, in violation of 18 U.S.C. § 2422(b) (2006). Kelly’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), asserting that there are no meritorious grounds for

appeal, but questioning whether the district court’s sentence

was procedurally unreasonable and whether the district court

erred in failing to explain its denial of Kelly’s motion for

variance. Kelly has not filed a pro se brief, though he was

informed of his right to do so. Finding no error, we affirm.

Consistent with United States v. Booker, 543 U.S. 220

(2005), the district court is required to follow a multi-step

process at sentencing. First, it must calculate the proper

sentencing range prescribed by the Guidelines. United States v.

Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008). It must then

consider that range in light of the parties’ arguments and the

factors set out in 18 U.S.C. § 3553(a) (2006), before imposing

its sentence. Id.; United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).

We review the district court’s sentence for abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 591 (2007).

First, we must ensure the district court did not commit any

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“significant procedural error,” such as failing to consider the

18 U.S.C. § 3553(a) factors or failing to adequately explain the

sentence. Id. at 597. Second, we consider the substantive

reasonableness of the sentence, taking into account the totality

of the circumstances. Id. If the sentence imposed is within

the appropriate Guidelines range, it is presumptively

reasonable. United States v. Johnson, 445 F.3d 339, 341 (4th

Cir. 2006).

The district court is not required to “robotically

tick through § 3553(a)’s every subsection.” Id. at 345.

Additionally, “when a judge decides simply to apply the

Guidelines . . . doing so will not necessarily require lengthy

explanation.” Rita v. United States, 551 U.S. 338, __, 127 S.

Ct. 2456, 2468 (2007). The district court must, however,

provide enough explanation for this court to effectively review

the sentence, including an indication that the district court

considered the 18 U.S.C. § 3553(a) factors with regard to the

defendant and that it considered any potentially meritorious

arguments by the parties with regard to sentencing. United

States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).

Furthermore, this court will not “evaluate a court’s sentencing

statements in a vacuum,” but will consider the context

surrounding the explanation. Id. at 381. When the record

clearly shows the district court considered the evidence and

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arguments proffered by both parties, an extensive opinion is not

required. Rita, 551 U.S. at __, 127 S. Ct. at 2469.

Our review of the record reveals no procedural error

in the district court’s imposition of sentence upon Kelly. The

court properly calculated the advisory Guidelines range,

considered the arguments of both parties regarding sentencing,

and explicitly stated that it considered the 18 U.S.C. § 3553(a)

factors when rendering its decision to sentence Kelly at the

bottom of the applicable Guidelines range. Further, the

district court did not err in failing to explain its reasoning

for denying the motion for variance, as it is clear from the

context surrounding the denial that the district court

considered the parties’ arguments prior to making its ruling.

Moreover, Kelly’s within-Guidelines sentence is presumptively

reasonable, and Kelly has not rebutted this presumption. Thus,

we conclude that the district court did not abuse its discretion

and the sentence is reasonable.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Kelly’s conviction and 210-month sentence.

This court requires that counsel inform Kelly, in writing, of

his right to petition the Supreme Court of the United States for

further review. If Kelly requests that a petition be filed, but

counsel believes that such a petition would be frivolous,

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counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Kelly. We dispense with oral argument because the

facts and legal conclusions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED