UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER TERRELL SHORT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen,
Senior District Judge. (1:07-cr-00084-WLO)
Submitted: April 12, 2010 Decided: June 29, 2010
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Christopher Terrell
Short pled guilty to possession with intent to distribute 1000.2
grams of cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1) (2006). The district court sentenced him as a
career offender to a 190-month term of imprisonment. On appeal,
Short’s 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 the procedural
reasonableness of Short’s sentence. Short has filed a pro se
supplemental brief. Finding no reversible error, we affirm.
Although neither Short nor his counsel challenges the
adequacy of plea hearing on appeal, we have reviewed the
transcript of the plea hearing for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing
standard). Our careful review of the record convinces us that
the district court substantially complied with the mandates of
Fed. R. Crim. P. 11 in accepting Short’s guilty plea and that
any omission on the court’s part did not affect Short’s
substantial rights. Moreover, the district court ensured that
Short’s guilty plea was knowing and voluntary and supported by a
sufficient factual basis. See United States v. DeFusco, 949
F.2d 114, 116, 119-20 (4th Cir. 1991).
2
Short and his counsel question the procedural
reasonableness of Short’s sentence. We review a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. This court must assess
whether the district court properly calculated the advisory
guidelines range, considered the factors in 18 U.S.C. § 3553(a)
(2006), analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). Finally,
this court reviews the substantive reasonableness of the
sentence, “examining the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010).
Counsel first asserts that Short’s prior North
Carolina convictions should not count separately for purposes of
designating Short as a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1 (2006 & Supp. 2007). Because an
intervening arrest separated Short’s two state court convictions
for felony possession with intent to sell and deliver cocaine,
3
the district court properly counted the convictions as separate
offenses. See USSG § 4A1.2(a)(2). To the extent counsel also
attempts to challenge the validity of Short’s January 31, 2001
predicate offense, he may not do so in this appeal. See
Custis v. United States, 511 U.S. 485, 493-97 (1994).
Next, Short asserts in his pro se brief that the
predicate offenses on which the district court relied to
classify him as a career offender did not constitute felonies
because he was sentenced to less than twelve months. Short’s
claim is foreclosed by our decision in United States v. Harp,
406 F.3d 242, 246 (4th Cir. 2005). 1 Thus, Short is not entitled
to relief on this claim.
Counsel also suggests that the district court did not
adequately state its reasons for imposing a 190-month sentence. 2
Because Short argued in the district court for a sentence below
the career offender guidelines range, we conclude that he has
preserved this claim for appellate review. See Lynn, 592 F.3d
1
Short relies on an unpublished decision in United
States v. Lemons, 280 F. App’x 258, 258-59 (4th Cir.), cert.
denied, 129 S. Ct. 238 (2008), as support for his claim of
procedural error. However, Short mischaracterizes the holding
in Lemons.
2
Based on the case cited in the issue statement in the
formal brief, we liberally construe the claim as challenging the
adequacy of the district court’s reasons for the selected
sentence.
4
at 578, 581. We have reviewed the sentencing transcript and
find no abuse of discretion. See id. at 576 (stating standard
of review). Although the district court’s explanation was
brief, the court specifically considered the facts of Short’s
case in imposing a within-guidelines sentence. See Gall, 552
U.S. at 51 (stating that district court “must make an
individualized assessment based on the facts presented”); Lynn,
592 F.3d at 576 (“[I]n explaining a sentencing decision, a court
need not robotically tick through § 3553(a)’s every subsection,
particularly when imposing a within-Guidelines sentence.”)
(internal quotation marks and citation omitted). Thus, the
district court committed no procedural error in sentencing Short
as a career offender. 3
Finally, turning to counsel’s claim that the career
offender guidelines range overstated Short’s criminal history,
we lack the authority to review a sentencing court’s decision
not to depart downward “unless the court failed to understand
its authority to do so.” United States v. Brewer, 520 F.3d 367,
371 (4th Cir. 2008). Based on our review of the sentencing
hearing, we are convinced that the district court clearly
recognized its authority to depart but determined that a
3
In light of our conclusion, we need not address counsel’s
argument that, in the event Short was not a career offender, he
should be placed in criminal history category II.
5
downward departure was not warranted on the facts of Short’s
case. Thus, this claim is not reviewable on appeal. Id.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of
the right to petition the Supreme Court of the United States for
further review. If the client 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 the client. 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
6