UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEWIS R. HARDY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:07-cr-00120-WDK-JEB-1)
Submitted: October 25, 2010 Decided: November 29, 2010
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer T. Stanton, J.T. STANTON P.C., Norfolk, Virginia, for
Appellant. Kevin Michael Comstock, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lewis R. Hardy was convicted after a jury trial of
conspiracy to possess with intent to distribute heroin and
cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1),
846 (2006); possession with intent to distribute heroin and
crack, in violation of § 841(a)(1); possession with intent to
distribute heroin and crack within 1000 feet of a school, in
violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession
of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (2006). The district court
sentenced Hardy to 185 months of imprisonment and he timely
appealed. On appeal, this court affirmed Hardy’s convictions,
but vacated his sentence and remanded for resentencing based on
an error in the criminal history calculations under the advisory
sentencing guidelines. See United States v. Hardy, 322 F. App’x
298 (4th Cir. 2009).
On remand, the district court sentenced Hardy to 168
months of imprisonment and Hardy now appeals. Appellate counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), raising two issues. Hardy has also filed a pro se
supplemental brief. * Finding no error, we affirm.
*
We have reviewed the arguments raised in the pro se
supplemental brief and conclude that they lack merit.
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Counsel first questions whether the district court
erred in calculating the advisory guidelines range. We review a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Layton, 564 F.3d 330, 335 (4th Cir.),
cert. denied, 130 S. Ct. 290 (2009). In so doing, we first
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
[g]uidelines range, treating the [g]uidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence . . . .”
Gall, 552 U.S. at 51. Finally, we “then consider the
substantive reasonableness of the sentence imposed.” Id. This
court presumes on appeal that a sentence within a properly
calculated advisory guidelines range is substantively
reasonable. Rita v. United States, 551 U.S. 338, 346-56 (2007)
(upholding presumption of reasonableness for within guidelines
sentence).
We have thoroughly reviewed the record and conclude
that the district court properly calculated the advisory
guidelines range. Moreover, the court considered the guidelines
range along with the § 3553(a) factors, thoroughly explained its
chosen sentence, and responded to the parties’ sentencing
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arguments. See United States v. Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (district court must conduct individualized
assessment based on the particular facts of each case, whether
sentence is above, below, or within the guidelines range). In
addition, we find that the sentence is also substantively
reasonable.
Counsel next questions whether the district court
erred in denying Hardy’s pro se motion for a new trial based on
newly-discovered evidence. This court reviews a district
court’s denial of a motion for a new trial for abuse of
discretion. See United States v. Fulcher, 250 F.3d 244, 249
(4th Cir. 2001). To receive a new trial based on
newly-discovered evidence, a defendant must demonstrate that (1)
the evidence is newly-discovered; (2) he has been diligent in
uncovering it; (3) it is not “merely cumulative or impeaching”;
(4) it is “material to the issues involved”; and (5) it would
probably produce an acquittal. Fulcher, 250 F.3d at 249.
Having reviewed the record and the applicable legal authorities,
we conclude that the court did not abuse its discretion in
denying Hardy’s motion for a new trial.
We have examined the entire record in this case in
accordance with the requirements of Anders and have found no
meritorious issues for appeal. We therefore affirm the judgment
of the district court. This court requires that counsel inform
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Hardy, in writing, of the right to petition the Supreme Court of
the United States for further review. If Hardy 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 Hardy. 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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