UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4889
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WEINTRAL DANIEL CURETON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:09-cr-00432-HMH-1)
Submitted: July 15, 2010 Decided: August 20, 2010
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Weintral Daniel Cureton pled guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)
(2006). A presentence report was issued that classified Cureton
as an Armed Career Criminal, and set his advisory guideline
range at 168-210 months’ imprisonment, which was well above the
statutory maximum of 120 months’ imprisonment that Cureton
actually faced. Cureton did not object to the presentence
report.
At Cureton’s sentencing hearing, Cureton’s counsel
pointed out that the district court could sentence Cureton to
“whatever sentence the court deems fit.” Counsel also asked the
court to “take into consideration” the fact that Cureton did not
run from police when they attempted to arrest him on an
outstanding warrant. However, at no point did counsel ever
explicitly ask that Cureton receive a particular sentence, be
sentenced within a particular range, or even request that he
receive a sentence below the 120 month statutory maximum he
faced.
When asked if he had anything to add to his attorney’s
statements, Cureton stated that he was “going through some hard
times.” He stated that he felt bad because he was unable to
provide for his sick mother and the rest of his family, and that
at the time he was arrested, he was planning to sell the gun in
2
his possession so that he could “provide for [his] family.”
While Cureton did ask the court for “mercy,” he, like his
attorney, failed to ask for a particular sentence, or to be
sentenced within a particular range, or even for a sentence that
was less than the 120 month statutory maximum.
After hearing from Cureton and his attorney, the
district court stated:
The [c]ourt has considered those factors under [18
U.S.C. § 3553(a)]. The [c]ourt has also considered
the guidelines as advisory only. The [c]ourt believes
that a [120 month] sentence is appropriate and will
accomplish the purposes of the statute and considering
the factors of this case.
The district court then proceeded to sentence Cureton to 120
months’ imprisonment. Cureton appealed.
This court reviews preserved claims of procedural
sentencing error for abuse of discretion, reversing any sentence
based upon such an error, unless the error was harmless;
however, unpreserved claims of procedural sentencing error are
reviewed under the more rigorous plain error test. See United
States v. Lynn, 592 F.3d 572, 575-79 (4th Cir. 2010). To
preserve his claim that a district court committed a procedural
sentencing error by inadequately explaining the reasoning for
its sentence, a defendant must, at minimum, “draw[] arguments
from § 3553 for a sentence different than the one ultimately
imposed.” Lynn, 592 F.3d at 578.
3
In other words, while a defendant is not necessarily
required to “complain about a judicial choice after it has been
made,” he must, “inform[] the court . . . of the action [he]
wishes the court to take.” Id. at 577-78 (citing United
States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009); Fed. R.
Crim. P. 51(b)) (emphasis removed). Applying this standard, we
find that Cureton has failed to preserve his objection to the
district court’s explanation of his sentence. Accordingly,
plain error review is appropriate.
To establish plain error, Cureton must show that an
error (1) was made, (2) is plain (i.e., clear or obvious), and
(3) affects his substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if
Cureton makes this three-part showing, this court may exercise
its discretion to correct the error only if it “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 343 (internal quotation marks omitted).
Here, even assuming the district court’s explanation of
Cureton’s sentence was inadequate, Cureton has failed to show
that any error affected his substantial rights, or that
affirming his sentence would “seriously affect[] the fairness,
integrity or public reputation” of the justice system.
4
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the issues are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
5