United States v. Worthy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4869

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

ZANTWAN DEVORRIS WORTHY,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:07-cr-00127-WLO)

Submitted: June 11, 2009 Decided: September 2, 2009

Before TRAXLER, Chief Judge, and MICHAEL and KING, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Following a guilty plea, Zantwan Devorris Worthy was

convicted of distributing cocaine hydrochloride, in violation of

21 U.S.C.A. § 841 (West 2000 & Supp. 2009). The district court

sentenced Worthy to 188 months’ imprisonment. Worthy appeals

his sentence, arguing that the district court erred by viewing

the sentencing guidelines as mandatory, failing to consider the

sentencing factors in 18 U.S.C. § 3553(a) (2006), failing to

provide an adequate explanation for refusing to grant a downward

variance, and imposing an unreasonably lengthy sentence.

Finding no error, we affirm.

This court reviews a sentence for abuse of discretion,

regardless of whether the sentence falls inside or outside the

guideline range. Gall v. United States, 552 U.S. 38, ___, 128

S. Ct. 586, 591 (2007). First, we must ensure that the district

court committed no significant procedural error. United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied,

128 S. Ct. 2525 (2008). Procedural errors include “failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence.” Gall, 128 S. Ct. at 597. Further, a district court

must provide an “individualized assessment” based upon the

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specific facts before it. United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009). If the sentence is procedurally

reasonable, the court then considers its substantive

reasonableness, taking into account the totality of the

circumstances. Gall, 128 S. Ct. at 597.

Worthy argues that the district court failed to make

specific findings relevant to § 3553(a)’s sentencing factors and

did not adequately explain its refusal to grant a downward

variance. Specifically, Worthy complains that the district

court did not address his argument that the presentence report

unduly emphasized his criminal history because he did not

actually commit one of the crimes included in his criminal

history.

The district court discussed Worthy’s criminal

history, focusing on his prior conviction for cocaine

trafficking. The district court provided an individualized

assessment of Worthy’s crime and circumstances, determining the

sentence only after discussing the seriousness of Worthy’s

offense, his prior drug trafficking conviction, his education,

the support shown by his family and community, the need to deter

others from committing the same crime, and the possibility of

his rehabilitation. Thus, the district court satisfactorily

explained its reasons supporting the sentence.

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Worthy also contends the sentence was procedurally

flawed because the district court failed to consider the

sentencing guidelines as advisory. We disagree. During the

sentencing hearing, the experienced district judge explained on

several occasions that the guidelines were simply

recommendations that the sentencing court was not bound to

follow.

Finally, Worthy argues that the district court imposed

an unreasonably lengthy sentence. This court presumes on appeal

that a sentence within a properly calculated Guideline range is

reasonable. Rita v. United States, 551 U.S. 338, 341, 347

(2007); United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007). Upon careful review, we are unpersuaded that Worthy’s

arguments are adequate to overcome that presumption.

Accordingly, we affirm the judgment of the district

court. Because Worthy is represented by counsel, we deny his

motion to file a pro se supplemental brief. 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