UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEOHARIS TOUMAZATOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00390-D-1)
Submitted: October 8, 2013 Decided: October 21, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael B. Driver, DRIVER LAW FIRM, PA, Durham, North Carolina,
for Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Federal inmate Theoharis Toumazatos pled guilty to
possession of a prohibited object, in violation of 18 U.S.C.A.
§ 1791(a)(2) (West 2006 & Supp. 2013). The district court
calculated Toumazatos’ Guidelines range under the
U.S. Sentencing Guidelines Manual (2012) at zero to six months’
imprisonment and sentenced him to three months’ imprisonment.
On appeal, 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 abused its discretion in imposing sentence.
Toumazatos was informed of his right to file a pro se
supplemental brief, but he has not done so. The Government
declined to file a brief. We affirm.
We review Toumazatos’ sentence for reasonableness
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006)
factors, selected a sentence based on clearly erroneous facts,
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and sufficiently explained the selected sentence. Id. at 49–51.
If the sentence is free of “significant procedural error,” we
review it for substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id. at 51. If the sentence
is within the properly calculated Guidelines range, we apply a
presumption on appeal that the sentence is substantively
reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217
(4th Cir. 2010). Such a presumption is rebutted only if the
defendant shows “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
omitted).
In this case, the district court correctly calculated
and considered the advisory Guidelines range, heard argument
from counsel, and afforded Toumazatos the opportunity to
allocute. The court explained that the within-Guideline
sentence of three months’ imprisonment was warranted in light of
the nature and circumstances of Toumazatos’ offense, his history
and characteristics, and the need for the sentence to reflect
the seriousness of the offense, to promote respect for the law,
and to afford adequate deterrence to criminal conduct. Neither
counsel nor Toumazatos offers any grounds to rebut the
presumption on appeal that his within-Guidelines sentence is
substantively reasonable. Accordingly, we conclude that the
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district court did not abuse its discretion in sentencing
Toumazatos.
Finally, 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 Toumazatos,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Toumazatos 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 Toumazatos.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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