UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4390
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERIC DAVIS, a/k/a Lil E,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (3:07-cr-00672-JFA-1)
Submitted: July 24, 2009 Decided: August 12, 2009
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Jane
Barrett Taylor, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Davis appeals his conviction and sentence to 97
months in prison after pleading guilty to possession with intent
to distribute and distribution of a quantity of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006). Davis’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting, in his opinion, there are no
meritorious grounds for appeal but raising the issue of whether
Davis’s within-guideline sentence of 97 months is reasonable.
Davis has filed a pro se supplemental brief raising the issue of
whether his attorney should have objected to the drug quantity
used to determine his base offense level. We affirm.
We review a sentence for abuse of discretion. Gall v.
United States, 128 S. Ct. 586, 591 (2007). The first step in
this review requires us to ensure that the district court
committed no significant procedural error, such as improperly
calculating the guideline range. United States v. Osborne, 514
F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).
We then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 128 S. Ct. at 597. We may address a claim of ineffective
assistance on direct appeal only if the lawyer’s ineffectiveness
conclusively appears from the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
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In sentencing, the district court should first
calculate the guideline range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the factors
under 18 U.S.C. § 3553(a) (2006) to determine whether they
support the sentence requested by either party. Id. When
rendering a sentence, the district court must make an
individualized assessment based on the facts presented, applying
the relevant § 3553(a) factors to the specific circumstances of
the case before it. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (quotations and citations omitted). In
explaining the chosen sentence, the “sentencing judge should set
forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v.
United States, 127 S. Ct. 2456, 2468 (2007).
We have reviewed the record and conclude that the
district court did not abuse its discretion in sentencing Davis,
and his sentence is both procedurally and substantively
reasonable. Moreover, the record does not conclusively show
ineffective assistance of counsel. First, the district court
properly determined Davis’s guideline range was 97 to 121 months
in prison. In the plea agreement and hearing conducted pursuant
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to Fed. R. Crim. P. 11, Davis agreed he was responsible for
between 150 and 500 grams of cocaine base for purposes of
determining his base offense level. Consistent with the
parties’ stipulation, the probation officer determined Davis was
responsible for 194.54 grams of cocaine base, and his base
offense level was thirty-two under U.S. Sentencing Guidelines
Manual § 2D1.1(c)(4) (2007). Neither party objected to this
determination, as there was no basis for an objection.
At sentencing, Davis objected to the disparity between
the guidelines for cocaine and for cocaine base, and he argued a
sentence below his guideline range was appropriate based on his
personal characteristics. After listening to Davis’s argument,
the district court inquired as to what made his case different
in terms of a variance from another defendant similarly situated
“using 3553(a) factors.” Davis responded that he had a minimal
criminal history; his employment and family relationship at that
time showed he had a capacity to adapt to supervision; and his
upbringing was disadvantaged.
In response, the Government acknowledged that Davis’s
employer confirmed he was a good worker, and did not object to a
sentence at the low end of his guideline range. However, the
Government contended that Davis’s upbringing was not unique, and
considering the specific facts of the case, there was nothing
that set Davis apart from other defendants who were similarly
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situated. Moreover, the Government argued it had already taken
into account the facts and circumstances in the case when it
gave Davis a plea deal dismissing a charge that would have
carried a ten-year mandatory minimum term.
The district court gave Davis credit for an impressive
argument, but explained the court was not quite persuaded that a
variance was appropriate in this case. After considering the
advisory sentencing guidelines and relevant § 3553(a) factors,
the district court determined a minimum guideline sentence, not
a variance, was appropriate because Davis had already “been
given a break in how the plea was worked out.” We conclude that
the district court considered the parties’ arguments and made an
individualized assessment based on the facts presented and the
relevant § 3553(a) factors. The district court’s explanation
was adequate, and Davis’s sentence is not greater than necessary
to comply with the purposes of § 3553(a).
In accordance with Anders, we have reviewed the entire
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 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
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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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