UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONALD ARTHUR HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00113-RJC)
Submitted: June 9, 2009 Decided: July 20, 2009
Before TRAXLER, Chief Judge, and MICHAEL and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Trevor M. Fuller, FULLER & BARNES, LLP, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Arthur Harris appeals his sentence after
pleading guilty to possession with intent to distribute cocaine,
cocaine base, and marijuana, and using and carrying a firearm
during and in relation to a drug trafficking crime. Harris’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967). Counsel raised the issue of whether Harris’s
sentence was reasonable and whether the district court erred in
not departing further based on the Government’s substantial
assistance motion under U.S. Sentencing Guidelines Manual
§ 5K1.1 (2005). * Harris was informed of his right to file a pro
se supplemental brief but has not done so. The Government
declined to file a reply brief. Finding no error, we affirm.
This court will affirm the district court’s imposition
of sentence as long as the sentence is within the statutorily
prescribed range and reasonable. United States v. Hughes, 401
F.3d 540 (4th Cir. 2005). When determining a sentence, the
district court must calculate the appropriate advisory
Guidelines range and consider it in conjunction with the factors
set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States,
552 U.S. 38, , 128 S. Ct. 586, 596 (2007). Appellate review
*
This case was placed in abeyance for United States v.
Antonio, 311 F. App’x 679, 2009 WL 430426 (4th Cir. 2009) (No.
07-4791). The decision in Antonio does not affect the outcome
of Harris’s appeal.
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of a district court’s imposition of a sentence, “whether inside,
just outside, or significantly outside the Guidelines range,” is
for abuse of discretion. 128 S. Ct. at 591. Sentences within
the applicable Guidelines range may be presumed by the appellate
court to be reasonable. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Harris, appropriately treating the
sentencing guidelines as advisory, properly calculating and
considering the applicable Guidelines range, taking testimony
from Harris’s relatives, considering the extent of Harris’s
substantial assistance, performing an “individualized
assessment” of the § 3553(a) factors to the facts of the case,
and stating in open court the reasons for the sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). (JA
74-77).
In addition, although Harris states that the district
court should have granted a larger downward departure from the
Guidelines range pursuant to § 5K1.1, a district court’s failure
to grant a downward departure is not reviewable unless a
district court was under the mistaken impression that it lacked
the authority to depart. United States v. Matthews, 209 F.3d
338, 352 (4th Cir. 2000); see also United States v. Cooper, 437
F.3d 324, 333 (3d Cir. 2006) (collecting cases declining to
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review a district court’s decision not to depart, even after
Booker). Here, the court granted the substantial assistance
motion and the extent of departure is challenged. There is no
evidence that the district court misunderstood its authority to
depart. Thus, Harris’s challenge to the district court’s
failure to depart further is not cognizable on appeal.
We therefore affirm the judgment. In accordance with
Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. We therefore affirm
Harris’s conviction and 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 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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