UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4949
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP JOE GUYETT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cr-00040-BR-1)
Submitted: February 8, 2011 Decided: March 18, 2011
Before SHEDD, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. George E.B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Philip Joe Guyett, Jr., pleaded guilty to three counts
of mail fraud, in violation of 18 U.S.C.A. § 1341 (West Supp.
2010). The district court sentenced Guyett to ninety-six months
of imprisonment and he now appeals. Finding no error, we
affirm.
Guyett argues that the sentence is procedurally and
substantively unreasonable. 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, 128 S. Ct. at 597.
Finally, we then “‘consider the substantive reasonableness of
the sentence imposed.’” United States v. Evans, 526 F.3d 155,
161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).
Guyett first argues that the district court erred in
failing to consider departures under the sentencing guidelines
before imposing a variant sentence, relying on our decision in
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United States v. Moreland, 437 F.3d 424 (4th Cir. 2006).
Guyett’s argument is foreclosed, however, by our recent decision
in United States v. Diosdado-Star, 2011 WL 198658, *3-*6 (4th
Cir. Jan. 24, 2011), in which we recognized that Moreland had
been overruled by the Supreme Court’s decisions in Gall and
Rita v. United States, 551 U.S. 338 (2007). As we may not
overrule this court’s binding precedent, United States v. Simms,
441 F.3d 313, 318 (4th Cir. 2006) (“[a] decision of a panel of
this court becomes the law of the circuit and is binding on
other panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision of the
Supreme Court” (internal quotation omitted)), this claim fails.
Guyett next argues that the sentence is substantively
unreasonable. We have thoroughly reviewed the record, however,
and reject this contention. See United States v. Abu Ali, 528
F.3d 210, 271 (4th Cir. 2008) (even if appellate court concludes
that a different sentence might be appropriate, that is
insufficient to justify reversal of the district court).
Accordingly, because Guyett’s sentence is both
procedurally and substantially reasonable, we affirm the
judgment of the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid in
the decisional process.
AFFIRMED
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