UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5075
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUTHER JOE CYRUS, a/k/a Joe Cyrus,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00106-TLW-1)
Submitted: January 26, 2011 Decided: February 11, 2011
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant. Kevin McDonald,
Acting United States Attorney, Columbia, South Carolina, Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Luther Joe Cyrus of possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2006). The district court sentenced Cyrus to 324 months’
imprisonment. Cyrus appealed. In light of United States v.
Booker, 543 U.S. 220 (2005), we vacated Cyrus’s sentence and
remanded for resentencing. See United States v. Cyrus, 132 F.
App’x 441 (4th Cir. 2005) (No. 04-4625). On remand, the
district court sentenced Cyrus to the same term of imprisonment
— 324 months. Cyrus’s counsel challenges this sentence on
appeal, contending that the court’s explanation was inadequate
and that the sentence is procedurally unreasonable. Finding no
error, we affirm.
Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” is for abuse of discretion. Gall
v. United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. “Procedural
reasonableness evaluates the method used to determine a
defendant’s sentence.” United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). Whereas, “[s]ubstantive
reasonableness examines the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
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that the sentence it chose satisfied the standards set forth in
[18 U.S.C.] § 3553(a) [(2006)].” Id.
This court must assess whether the district court
properly calculated the advisory Guidelines range, considered
the § 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 49-50; see also United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009). A sentence imposed within the
properly calculated Guidelines range is presumed reasonable by
this court. Mendoza-Mendoza, 597 F.3d at 217.
At the resentencing hearing, Cyrus’s counsel asked the
district court not to apply a cross-reference for possession of
firearms and ammunition in connection with the commission of
another offense. Counsel argued that a sentence at the low end
of an advisory Guidelines range that did not include the cross-
reference would be appropriate considering Cyrus’s age and
health. Despite counsel’s argument, the district court adopted
the amended presentence report, including the “findings and
rulings” made by the court during the original sentencing
hearing. The court then noted Cyrus’s age and considered the
applicable § 3553(a) factors, including: the lack of a deterrent
effect that prior lengthy sentences have had on Cyrus; the
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seriousness of this case based on the large number of firearms
and ammunition recovered as well as the presence of drugs and
drug paraphernalia; the need to protect the public; and the
kinds of sentences available and the applicable sentencing
range.
Counsel contends, however, that this explanation is
insufficient because the court did not address specifically
counsel’s assertion that Cyrus’s age and health warranted
special consideration. Yet, the district court specifically
referenced Cyrus’s age. Moreover, the court adopted the
presentence report, which went into great detail about Cyrus’s
physical and mental health. The court also discussed Cyrus’s
health, medication, and age with counsel prior to pronouncing
sentence. Considering the record as a whole, we conclude that
the court’s explanation supporting the 324-month within-
Guidelines sentence was adequate and that the sentence is
procedurally reasonable.
Accordingly, we affirm the judgment of the district
court. 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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