United States v. Hollingsworth

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4739

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAYWOOD JEROME HOLLINGSWORTH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:99-cr-00058-BO-2)

Submitted: June 22, 2010 Decided: July 6, 2010

Before GREGORY, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

Haywood Jerome Hollingsworth appeals the forty-six

month sentence imposed by the district court after its finding

that Hollingsworth violated the terms of his supervised release.

Hollingsworth’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), questioning whether the

district court individually assessed the statutory sentencing

factors, but concluding that because Hollingsworth received the

within-Guideline range sentence that he requested, the appeal

presents no meritorious issues. Hollingsworth was informed of

his right to file a pro se supplemental brief but has not done

so. We affirm.

We review a sentence imposed upon revocation of

supervised release to ensure that it is not plainly

unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th

Cir. 2010). The first step in this review requires us to

determine whether the sentence is unreasonable. United States

v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In assessing

reasonableness, we generally follow the procedural and

substantive components employed in reviewing original sentences.

Id. Only if the sentence is unreasonable do we proceed to the

second step of the analysis – whether the sentence is plainly

unreasonable. Id. at 438-39.

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 A sentence is procedurally unreasonable if the

district court “‘fails to adequately explain the chosen

sentence.’” Thompson, 595 F.3d at 547 (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)) (alteration omitted). The

district court “may not presume that the Guidelines range is

reasonable,” but “must make an individualized assessment based

on the facts presented” by applying the relevant § 3553(a)

factors to the circumstances of the case. Gall, 552 U.S. 38, 50

(2007). “A court need not be as detailed or specific when

imposing a revocation sentence as it must be when imposing a

post-conviction sentence, but it still must provide a statement

of reasons for the sentence imposed.” Thompson, 595 F.3d at 547

(internal quotation marks omitted).

We recently addressed in Thompson the appropriate

standards of appellate review for the sort of procedural error

Hollingsworth alleges here. “[A] defendant need only ask for a

sentence outside the range calculated by the court prior to

sentencing in order to preserve his claim for appellate review.”

Id. at 546. Where, as here, the party fails to preserve his

claim, we review the claim for plain error. See id. at 546.

Because Hollingsworth argued for, and received, a sentence

within the Guideline range, he has failed to preserve his claim

of procedural unreasonableness, and our review is for plain

error.

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 To establish plain error, Hollingsworth “must show

that an error (1) was made (2) is plain (i.e., clear or

obvious), and (3) affects substantial rights.” United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Our review of the

record leads us to conclude that Hollingsworth cannot show that

his substantial rights were affected by the claimed error. See

id. at 580 (holding that, where counsel “urged [the district]

court only to impose a sentence within the Guideline range,

which it did,” appellant could not show that error affected his

substantial rights).

Nor was the sentence imposed substantively

unreasonable. We deem a sentence within the properly calculated

Guideline range to be presumptively reasonable. United States

v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Here, the district

court sentenced Hollingsworth within the properly-calculated

Guidelines range, and Hollingsworth advances no persuasive

reason to rebut the presumption of reasonableness that there be

attached. Accordingly, because Hollingsworth’s sentence was not

unreasonable, 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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