UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5093
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEORGE ROBERT DRIVER,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:08-cr-00628-GRA-10)
Submitted: January 31, 2011 Decided: February 24, 2011
Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Leslie Sarji Locklair, LOCKLAIR & LOCKLAIR, PC, Surfside Beach,
South Carolina, for Appellant. Alan Lance Crick, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Robert Driver appeals his sentence of 110
months in prison and 5 years of supervised release after he pled
guilty to conspiracy to distribute methamphetamine in violation
of 21 U.S.C. § 846 (2006). Driver’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in counsel’s opinion, there are no meritorious
grounds for appeal, but raising the issues of whether the
district court adequately explained its consideration of the
sentencing factors under 18 U.S.C. § 3553(a) (2006), and whether
the district court properly considered the sentencing guidelines
as advisory. Driver was notified of his right to file a pro se
supplemental brief but has not done so. We affirm.
We review a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). We then consider the substantive reasonableness of the
sentence imposed, taking into account the totality of the
circumstances and giving due deference to the district court’s
decision. Gall, 552 U.S. at 51. We presume a sentence within a
properly calculated advisory guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
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In sentencing, the district court should first
calculate the guideline range and give the parties an
opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the
relevant § 3553(a) factors to determine whether they support the
sentence requested by either party. Id. When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case. Carter, 564 F.3d at 328, 330.
In explaining the chosen sentence, the “sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority,”
but when the judge decides simply to apply the guidelines,
“doing so will not necessarily require lengthy explanation.”
Rita v. United States, 551 U.S. 338, 356 (2007). Where the
defendant “presents nonfrivolous reasons for imposing a
different sentence, however, the judge will normally go further
and explain why he has rejected those arguments.” Id. at 357.
While a district court must consider the statutory factors and
explain its sentence, it need not explicitly reference § 3553(a)
or discuss every factor on the record, particularly when the
district court imposes a sentence within a properly calculated
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guideline range. United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006).
The parties agreed Driver would be responsible for at
least 350 grams but less than 500 grams of methamphetamine for
purposes of calculating his sentence under the guidelines.
Without the plea agreement, the probation officer noted Driver
would be responsible for two pounds of methamphetamine. The
district court determined that Driver’s guideline range was 110
to 137 months based on a total offense level of twenty-five and
criminal history category VI. The parties agreed with the
calculations. Driver asked the district court to sentence him
at “the low end of the guidelines in this case, near 110
months.” Counsel explained Driver had become involved in the
offense due to economic problems and because he was addicted to
methamphetamine, and he requested that the court recommend his
participation in drug treatment while incarcerated.
The district court gave Driver an opportunity to
allocute, and he explained his drug addiction led him to make
some bad choices. The court asked him if he thought he would
benefit from drug treatment, and Driver replied, “Yes, Your
Honor. I think that’s the main problem that I have.” The court
agreed to recommend it and granted his request to be sentenced
at the low end of his guideline range to 110 months in prison.
The court noted that it accepted the plea agreement as fair to
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Driver and the Government. The court asked whether Driver had
any complaints or anything else to say, and he did not.
On appeal, counsel raises the issues of whether the
district court adequately explained its consideration of the
statutory sentencing factors and whether it properly considered
the guidelines as advisory. As counsel notes, we review these
issues for plain error. See United States v. Lynn, 592 F.3d
572, 577 (4th Cir. 2010). It is therefore Driver’s burden to
show (1) error; (2) that is plain; and (3) the error affects his
substantial rights. See United States v. Olano, 507 U.S. 725,
732 (1993). If he makes this showing, the decision to correct
the error lies within our discretion, and we exercise that
discretion only if the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id.
We have reviewed the record and conclude that Driver has not
shown plain error affecting his substantial rights.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his or her client, in
writing, of his 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
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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
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