UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4990
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GILMORE RICHARDS,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Thomas E. Johnston,
District Judge. (1:08-cr-00040-1)
Submitted: July 20, 2009 Decided: August 14, 2009
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, Miller A. Bushong, III,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gilmore Richards pled guilty pursuant to a plea
agreement to one count of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006). As part of the plea
agreement, Richards waived his right to appellate review of the
reasonableness of a sentence within the Guidelines range. The
district court sentenced Richards to a within-Guidelines
sentence of 70 months’ imprisonment. Richards’ counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but questioning whether the district court erred in denying
Richards’ motion for a downward departure and whether the
sentence imposed is reasonable. The Government does not seek to
enforce the plea agreement’s appeal waiver. * We affirm.
Richards contends that the district court erred in
denying his motion for a downward departure, pursuant to U.S.
*
Because the Government does not seek enforcement of the
appeal waiver, we need not consider whether the waiver is
dispositive of this appeal. See United States v. Brock, 211
F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal
waiver that arguably barred the appeal on one issue because the
Government had expressly elected not to argue waiver with
respect to that issue); cf. United States v. Blick, 408 F.3d
162, 168-69 (4th Cir. 2005) (enforcing a plea agreement’s appeal
waiver where the Government sought enforcement, the issues
raised fell within the waiver’s scope, and no claim was
presented that the Government breached its obligations under the
plea agreement).
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Sentencing Guidelines Manual § 4A1.3 (2007), on the basis that
his criminal history category over-represented the seriousness
of his criminal history. A district court’s refusal to depart
from the applicable Sentencing Guidelines range does not provide
a basis for appeal under 18 U.S.C. § 3742 (2006), “unless the
court failed to understand its authority to do so.” United
States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). After
review of the record, we conclude that the district court
clearly recognized its authority to depart but determined that a
downward departure was not warranted. Accordingly, this claim
is not cognizable on appeal.
A review of the sentencing transcript and the
presentence report reveals no error in sentencing. In
determining a defendant’s sentence, the district court must
calculate properly the advisory Guidelines range and consider
this range in conjunction with the factors set forth at
18 U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S. 38,
___, 128 S. Ct. 586, 596-97 (2007). We review a district
court’s imposition of a sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” under an abuse-
of-discretion standard. 128 S. Ct. at 591. Further, sentences
within the applicable Guidelines range may be presumed
reasonable on appeal. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
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The district court followed the necessary procedural
steps in sentencing Richards, properly calculating, treating as
advisory, and considering the Guidelines range, performing an
“individualized assessment” of the relevant § 3553(a) factors,
and stating in open court the reasons for its sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Richards’
sentence, which is at the low end of the applicable Guidelines
range and below the statutory maximum of twenty years’
imprisonment, may be presumed on appeal to be reasonable. We
conclude that the district court did not abuse its discretion in
sentencing Richards.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Richards, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Richards 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 Richards. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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