UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4907
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMY LANE STOUT,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00007-RLV-DCK-1)
Submitted: March 7, 2011 Decided: May 5, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua D. Davey, MCGUIREWOODS, LLP, Charlotte, North Carolina,
for Appellant. Amy Elizabeth Ray, Edward R. Ryan, Assistant
United States Attorneys, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Lane Stout appeals from his conviction and 210-
month total sentence imposed following his guilty plea to
conspiracy to possess with intent to distribute a quantity of
methamphetamine and a quantity of marijuana, and using and
carrying a firearm during and in relation to a drug trafficking
offense. Stout’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), addressing the obstruction of
justice enhancement imposed and the denial of a reduction for
acceptance of responsibility after Stout absconded prior to
sentencing, but stating that there was no merit to the appeal.
Stout filed a pro se brief reiterating counsel’s issues,
asserting that he should not have lost the benefit of the
government’s motion for a downward departure, and requesting
that his sentences on the drug and firearm charges run
concurrently. Our review of the record discloses no reversible
error; accordingly, we affirm Stout’s conviction and sentence.
We find that Stout’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Stout was properly advised of his rights, the
offenses charged, and the mandatory minimum and the maximum
sentence he faced. The court also determined that there was an
independent factual basis for the plea and that the plea was not
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coerced or influenced by any promises. See United States v.
DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
This court reviews Stout’s sentence for reasonableness
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). In reviewing a sentence,
this court must first ensure that the district court properly
calculated the defendant’s advisory guideline range, considered
the 18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). The court then considers the substantive
reasonableness of the sentence imposed under the totality of the
circumstances. Gall, 552 U.S. at 51.
We review for clear error a district court’s
determination that a defendant obstructed justice. United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). Here, the
district court found that Stout obstructed justice by failing to
appear for sentencing as directed and by remaining a fugitive
for three years. These facts are not disputed by Stout and are
sufficient to support the obstruction of justice enhancement.
U.S. Sentencing Guidelines Manual § 3C1.1, cmt. n.4(e) (2008).
Also, an enhancement for obstruction of justice “ordinarily
indicates that defendant has not accepted responsibility for
criminal conduct,” except in “extraordinary cases in which
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adjustments under both §§ 3C1.1 and 3E1.1 may apply.” USSG
§ 3E1.1, cmt. n.4. We find this is not such an extraordinary
case as would allow Stout the benefit of acceptance of
responsibility in spite of his failure to appear for sentencing
and prolonged period as a fugitive. See United States v.
Hudson, 272 F.3d 260, 263 (4th Cir. 2001).
Turning to the issues raised in Stout’s pro se brief,
we find no error by the sentencing court in allowing the
government to withdraw its motion for a downward departure when
Stout failed to appear for sentencing as directed. Also,
Stout’s challenge to the mandatory consecutive sentencing scheme
of 18 U.S.C. § 924(c)(1)(A)(i) (2006) has been rejected by the
Supreme Court in Abbott v. United States, 562 U.S. ___, 131 S.
Ct. 18 (2010); see United States v. Studifin, 240 F.3d 415 (4th
Cir. 2001). Accordingly, we conclude that this claim is without
merit.
Finally, we find that the district court correctly
determined Stout’s advisory guideline range, provided an
individualized analysis of the § 3553(a) factors as they apply
to Stout’s circumstances, analyzed the arguments presented by
the parties, and acted within its discretion by departing
downward to a 150-month sentence on the drug charge. We find
that the 210-month total sentence imposed was not procedurally
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or substantively unreasonable, and therefore not an abuse of
discretion. See Gall, 552 U.S. at 51.
As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Stout’s conviction and sentence. This court
requires that counsel inform his 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 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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