UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5072
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH ROBERT GODSEY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Thomas E. Johnston,
District Judge. (1:08-cr-00016-1)
Submitted: May 12, 2010 Decided: June 3, 2010
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Robert Godsey pled guilty, pursuant to a
written plea agreement, to one count of mailing threatening
communications, in violation of 18 U.S.C. § 876(c) (2006). The
district court calculated Godsey’s imprisonment range under the
U.S. Sentencing Guidelines Manual (2007) at 33 to 41 months, but
imposed an upward variance and sentenced Godsey to 60 months’
imprisonment. Godsey appeals his sentence, arguing that the
district court erred in failing to articulate on the record its
consideration of the sentencing factors under 18 U.S.C.
§ 3553(a) (2006). * Finding no error, we affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This review
entails appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 51. Godsey
does not contest the substantive reasonableness of his sentence.
*
Because the Government has not sought enforcement of the
plea agreement’s appeal waiver, we need not consider whether the
waiver is dispositive of this appeal. Cf. United States v.
Blick, 408 F.3d 162, 168-70 (4th Cir. 2005) (enforcing a plea
agreement’s appeal waiver where the Government sought
enforcement, the issues raised fell within the waiver’s scope,
and no claim was presented that the Government breached its
obligations under the plea agreement).
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In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s Guidelines range. Id. at 49, 51. We
must then consider whether the district court treated the
Guidelines as mandatory, failed to consider the 18 U.S.C.
§ 3553(a) factors and any arguments presented by the parties,
selected a sentence based on “clearly erroneous facts,” or
failed to explain sufficiently the selected sentence. Id. at
50-51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007).
In evaluating a district court’s explanation of a
selected sentence, this court has held that, although a district
court must consider the statutory factors and explain its
sentence, it need not explicitly reference § 3553(a) or discuss
every single factor on the record. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006). However, the district court
still “must make an individualized assessment based on the facts
presented,” and apply 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) (internal quotation
marks and emphasis omitted). The court must also “state in open
court the particular reasons supporting its chosen sentence” and
“set forth enough to satisfy” this court that it has “considered
the parties’ arguments and has a reasoned basis for exercising
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[its] own legal decisionmaking authority.” Id. (internal
quotation marks omitted). The reasons articulated by the
district court for a given sentence need not be “couched in the
precise language of § 3553(a),” as long as the reasons “can be
matched to a factor appropriate for consideration under that
statute and [are] clearly tied to [the defendant’s] particular
situation.” United States v. Moulden, 478 F.3d 652, 658
(4th Cir. 2007).
Because Godsey did not object to the adequacy of the
district court’s explanation for the chosen sentence “[b]y
drawing arguments from [18 U.S.C.] § 3553 for a sentence
different than the one ultimately imposed,” our review is for
plain error. United States v. Lynn, 592 F.3d 572, 577-78
(4th Cir. 2010). To prevail under this standard, Godsey bears
the burden of establishing that plain error by the district
court affected his substantial rights. Id. at 580. In the
sentencing context, an error affects substantial rights if the
defendant can show that the sentence imposed was longer than
“that to which he would otherwise be subject.” United States v.
Washington, 404 F.3d 834, 843 (4th Cir. 2005) (internal
quotation marks omitted).
Here, in addition to stating that it considered the
“[a]dvisory Guideline[s] range” in determining Godsey’s
sentence, the district court also evaluated Godsey’s continued
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sending of threatening communications, even after a prior
conviction for the same offense and a resulting prison sentence
at the statutory maximum, his refusal to get help for the
psychological problems influencing his decisions to send such
communications, and the number and violent nature of the
communications. The district court thus clearly considered
particular § 3553(a) factors; namely, Godsey’s history and
characteristics and the nature and circumstances of his offense.
Further, the district court also evaluated and addressed the
need for the sentence to reflect the seriousness of Godsey’s
offense, to promote respect for the law, to deter Godsey, and to
protect the victims and the public, noting that an upward
variance was justified in light of the violent nature of his
continued threatening communications and his refusal to cease
his criminal behavior. The district court not only explicitly
stated its consideration of the § 3553(a) factors in accordance
with Gall and this court’s precedents, but also articulated how
the sentencing factors applied to this case. We therefore
conclude that the district court did not plainly err in
explaining its decision to impose the 60-month sentence. The
sentence is procedurally reasonable, and Godsey does not
challenge the substantive reasonableness of the sentence.
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Finding no abuse of discretion, we affirm the district
court’s judgment. 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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