UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSE DOUGLAS ROBERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00012-RLV-CH-1)
Submitted: December 8, 2009 Decided: December 31, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Ann L. Hester, Kevin Tate, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., 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Unpublished opinions are not binding precedent in this circuit.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:
Jesse Douglas Roberson appeals from the sixty-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of conspiracy with intent
to distribute cocaine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), (C), 846 (2006). Roberson’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether Roberson’s sentence was procedurally and
substantively reasonable. Roberson was advised of his right to
file a pro se brief, but has not done so. Finding no reversible
error, we affirm.
Consistent with United States v. Booker, 543 U.S. 220
(2005), the district court is required to follow a multi-step
process at sentencing. First, it must calculate the proper
sentencing range prescribed by the Guidelines. Gall v. United
States, 552 U.S. 38, 49 (2007); see also United States v. Abu
Ali, 528 F.3d 210, 260 (4th Cir. 2008), cert. denied, 129 S. Ct.
1312 (2009). It must then consider that range in light of the
parties’ arguments regarding the appropriate sentence and the
factors set out in 18 U.S.C. § 3553(a) (2006), before imposing
its sentence. Gall, 552 U.S. at 49-50; see also Abu Ali, 528
F.3d at 260.
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We review the district court’s sentence for abuse of
discretion. Gall, 552 U.S. at 41. First, we must ensure the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the advisory
Guidelines sentence, consider the 18 U.S.C. § 3553(a) factors,
or adequately explain the sentence. Id. at 51. Once we have
determined there is no procedural error, we must consider the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id. If the sentence imposed
is within the appropriate Guidelines range, we consider it on
appeal to be presumptively reasonable. United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008). The presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks and
citation omitted).
Our review of the record reveals that the district
court properly calculated Roberson’s applicable Guidelines
range, taking into account the five-year statutory mandatory
minimum sentence. Critically, because the Government did not
move for a downward departure to reflect substantial assistance,
the district court had no authority to depart below the
mandatory minimum. 18 U.S.C. § 3553(e); Melendez v. United
States, 518 U.S. 120, 125-26 (1996). Furthermore, Roberson’s
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within-Guidelines sentence is presumptively reasonable on appeal
and Roberson has not rebutted that presumption. Therefore, we
find that the district court committed no reversible error in
sentencing Roberson to sixty months’ imprisonment.
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 Roberson, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Roberson requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Roberson. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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