UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4954
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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