UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4607
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN WILBERT POWELL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:04-cr-00356-F-1)
Submitted: April 30, 2009 Decided: June 19, 2009
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. George E. B. Holding, Acting United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Marvin Powell was convicted
of: (1) aiding and abetting another in possessing with intent to
distribute fifty grams or more of cocaine base and a quantity of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count
One); (2) conspiracy to possess with intent to distribute fifty
grams or more of cocaine base and a quantity of cocaine, in
violation of 21 U.S.C. § 846 (2006) (Count Two); (3) possession
with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) (Count Three); (4) possession of a firearm in
furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2006) (Count Four); and (5) being a felon
in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) (2006), 924 (2006) (Count Five). On appeal, Powell
argues his sentence is unreasonable in light of the sentence a
co-defendant received and the sentences other similarly situated
defendants have received in this circuit. We affirm.
This court reviews a sentence imposed by a district
court under a deferential abuse of discretion standard. United
States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). In
reviewing a sentence, we must first ensure that the district
court committed no procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
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§ 3553(a) factors, selecting a 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 v. United States, 128 S. Ct. 586, 597
(2007). If there are no procedural errors, we then consider the
substantive reasonableness of the sentence. Id. A substantive
reasonableness review entails taking into account the totality
of the circumstances, including the extent of any variance from
the Guidelines range. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007) (quotations and citation omitted). While we
may presume a sentence within the guidelines range to be
reasonable, we may not presume a sentence outside the range to
be unreasonable. Id. Even if the reviewing court would have
reached a different result, this fact alone is insufficient to
justify reversal of the district court. Id. at 474.
Powell’s claim that his sentence is unreasonable
because it fails to consider the disparity between his sentence
and that of a co-defendant is without merit. Many valid factors
can result in the imposition of different sentences among
co-defendants. Here, for example, Powell’s co-defendant pled
guilty and cooperated with the Government. See United States v.
Abu Ali, 528 F.3d 210, 264 (4th Cir. 2008). Therefore, the
district court did not abuse its discretion in rejecting this
argument.
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Next, Powell’s claim that his sentence is unreasonable
in light of sentences other similarly situated defendants have
received is raised for the first time on appeal and is,
therefore, subject to plain error review. Plain error requires
Powell to establish that: (1) there was error; (2) the error was
“plain;” and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). Even if he
makes this showing, “Rule 52(b) leaves the decision to correct
the forfeited error within the sound discretion of the court of
appeals.” Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985) (internal quotations omitted)). We have reviewed the
record and the briefs submitted by the parties and determine
that Powell fails to establish plain error. The record does not
indicate any significant procedural error committed by the
district court in sentencing Powell, and we find his sentence is
substantively reasonable.
Accordingly, we deny Powell’s motion to supplement his
brief and affirm the judgment of the district court. We
dispense with oral argument as 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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