UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4878
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TODD ALLEN SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:10-cr-00021-RBS-FBS-1)
Submitted: May 31, 2011 Decided: June 14, 2011
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Scott W. Putney, Assistant
United States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd Allen Spencer appeals his conviction and sentence
based on his guilty plea to one count of escaping from custody,
in violation of 18 U.S.C. § 751(a) (2006). We affirm.
On appeal Spencer first contends that his plea was
unknowing and involuntary because the district court made
misrepresentations of law and fact at his plea hearing. Because
Spencer withdrew his motion to withdraw his guilty plea in the
district court and did not raise any objections during the Rule
11 plea colloquy, the plea colloquy is reviewed for plain error.
United States v. General, 278 F.3d 389, 393 (4th Cir. 2002);
United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).
To demonstrate plain error, a defendant must show that:
(1) there was an error; (2) the error was plain; and (3) the
error affected his “substantial rights.” United States v.
Olano, 507 U.S. 725, 732 (1993). A defendant’s substantial
rights are affected if the court determines that the error
“influenced the defendant’s decision to plead guilty and
impaired his ability to evaluate with eyes open the direct
attendant risks of accepting criminal responsibility.” United
States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal
quotation marks omitted); see also Martinez, 277 F.3d at 532
(holding that defendant must demonstrate he would not have pled
guilty but for the error). Our review of the record indicates
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that the district court did not err, much less plainly so, in
accepting Spencer’s plea.
Next Spencer contends that the district court erred in
failing to adequately consider the statutory sentencing factors
and to adequately state its reasons for the chosen sentence.
This court reviews a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009). In so doing, the court first examines the sentence
for “significant procedural error,” including “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. The district court is not
required to “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). However, the district court “must place on the
record an ‘individualized assessment’ based on the particular
facts of the case before it. This individualized assessment
need not be elaborate or lengthy, but it must provide a
rationale tailored to the particular case at hand and adequate
to permit ‘meaningful appellate review.’” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552
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U.S. at 50) (internal footnote omitted). A reviewing court then
considers the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. After reviewing the record, we conclude
that Spencer’s sentence was both procedurally and substantively
reasonable. *
Lastly, Spencer claims that the district court failed
to depart pursuant to U.S. Sentencing Guidelines Manual § 5K2.13
(2009) because it did not understand the extent of its authority
to do so. “An appellate court lacks the authority to review a
sentencing court’s denial of a downward departure unless the
court failed to understand its authority to do so.” United
States v. Herder, 594 F.3d 352, 362 (4th Cir. 2010) (internal
quotation marks omitted). Because the district court clearly
understood its authority to depart from the Guidelines, we lack
authority to review this claim.
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
*
In concluding that the basis for the district court’s
chosen sentence articulated at the sentencing hearing fully
satisfied Gall’s requirements, we reject Spencer’s argument that
the court’s failure to also prepare a written statement
explaining its decision to sentence him outside of the
applicable Guidelines range constitutes reversible error.
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before the court and argument would not aid the decisional
process.
AFFIRMED
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