UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4665
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T.
Copenhaver, Jr., District Judge. (2:09-cr-00017-1)
Submitted: November 5, 2009 Decided: November 20, 2009
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Monica L. Dillon, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Wilkerson was indicted on three counts of
distribution of a quantity of cocaine and one count of
possession with intent to distribute cocaine, occurring on four
different days. He entered into a plea agreement in which he
agreed to plead guilty to one count of distribution of cocaine,
in violation of 21 U.S.C. § 841(a)(1) (2006). The Government
had the remaining counts dismissed. Wilkerson’s total offense
level under the advisory Sentencing Guidelines was ten and he
was placed in Criminal History Category II. Wilkerson’s
Guidelines’ range of imprisonment was eight to fourteen months.
At sentencing, the district court believed an upward variance
was warranted because it was the third conviction for Wilkerson
involving distribution of cocaine and it appeared to the court
that Wilkerson needed to appreciate the seriousness of the
offense and the public needed to be protected from his criminal
conduct. The court sentenced Wilkerson to twenty-four months’
imprisonment. Wilkerson appeals, claiming the sentence is
unreasonable. We find the court did not abuse its discretion
and affirm.
Appellate courts review a sentence for reasonableness,
applying an abuse of discretion standard, whether the sentence
is inside or outside the guideline range. Gall v. United
States, 552 U.S. 38, 40 (2007). First, the court must “ensure
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that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating)
the Guidelines range.” Id. at 51; United States v. Osborne, 514
F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).
Procedural errors also include “failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. A district court must also
provide an “individualized assessment” based upon the specific
facts before it. “That is, the sentencing court must apply the
relevant [18 U.S.C.] § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009). “Such individualized
treatment is necessary ‘to consider every convicted person as an
individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the crime
and the punishment to ensue.’” Id. (quoting Gall, 552 U.S. at
52) (internal quotation marks omitted). In so doing, the
district court must “‘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 decision making
authority.’” Id. (quoting Rita v. United States, 551 U.S. 338,
356 (2007)). “This individualized assessment need not be
elaborate or lengthy, but it must provide a rationale tailored
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to the particular case at hand and adequate to permit
‘meaningful appellate review.’” Id. at 330 (quoting Gall, 552
U.S. at 50).
Only after determining that no significant procedural
error occurred does this court review the substantive
reasonableness of the sentence, “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) (quoting Gall, 552 U.S. at
50). When reviewing the substantive reasonableness of an upward
variance, the court “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance.” Gall, 552 U.S. at 51. “Even if
[this court] would have reached a different sentencing result on
our own, this fact alone is ‘insufficient to justify reversal of
the district court.’” Pauley, 511 F.3d at 474 (quoting Gall,
552 U.S. at 51).
Under 18 U.S.C. § 3553(a) (2006), the district court
should consider the nature and circumstances of the offense and
the history and characteristics of the defendant. The court
should impose a sentence that reflects the seriousness of the
offense, the need to promote respect for the law, to provide
just punishment, to afford adequate deterrence, to protect the
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public from further crimes and to provide the defendant with
adequate rehabilitation or medical treatment.
We find the district court provided an adequate
individualized assessment of the § 3553 sentencing factors in
relation to Wilkerson and his criminal conduct. The court took
into consideration Wilkerson’s prior criminal conduct as well as
his positive attributes. Accordingly, we find the district
court did not abuse its discretion.
We affirm the conviction and sentence. 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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