UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4906
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. G. Steven Agee, Circuit
Judge, sitting by designation; Samuel G. Wilson, District Judge.
(7:10-cr-00011-SGW-1)
Submitted: May 31, 2011 Decided: June 22, 2011
Before KING and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Fay F. Spence,
Assistant Federal Public Defender, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Nevoyle Dickerson pled guilty to conspiracy to
distribute and possess with intent to distribute more than 1000
grams of heroin, in violation of 21 U.S.C. § 846 (2006), and
attempt to distribute more than 100 grams of heroin, in
violation of § 846. The court sentenced him as a career
offender to 262 months’ imprisonment. Dickerson argues that his
sentence is procedurally unreasonable because the court (1)
presumed the reasonableness of a within-Guidelines sentence, (2)
failed to explain why it rejected his argument that his
extraordinary cooperation warranted a greater than three-level
sentence reduction, and (3) failed to explain why it rejected
his arguments that the career offender Guidelines should not
apply. Finding no error, we affirm.
In determining the procedural reasonableness of a
sentence, we consider whether the district court properly
calculated the advisory Guidelines range, considered the 18
U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence. Gall v. United States, 552 U.S. 38, 51
(2007). “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” United States v. Carter, 564 F.3d
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325, 330 (4th Cir. 2009) (internal quotation marks omitted).
The explanation must be sufficient to allow for “meaningful
appellate review,” id. at 328, such that the appellate court
need “not guess at the district court’s rationale.” Id. at 329
(internal quotation marks omitted).
Dickerson asserts that the district court improperly
applied a presumption of reasonableness in fashioning his
sentence. In Rita v. United States, 551 U.S. 338 (2007), the
Supreme Court held that an appellate court may presume that a
within-Guidelines sentence is reasonable. Id. at 351. We have
recognized, however, that “Rita presumptions are forbidden in
sentencing courts . . . [because] they confer the force of law
upon the Guidelines.” United States v. Mendoza-Mendoza, 597
F.3d 212, 217 (4th Cir. 2010). If the district court applies a
presumption of reasonableness in the initial sentencing
proceeding, the “sentence is procedurally unreasonable.” Id. at
216-17. On the other hand, we have explained that a district
court does not impermissibly apply a presumption in favor of a
Guidelines sentence if it “use[s] the Guidelines to orient its
thinking” and “the process of sentencing begins with correctly
calculating the Guidelines sentencing range.” Id. at 217. Nor
does a district court violate Rita “simply by selecting a
Guidelines sentence in the case or by deeming it the most
fitting or appropriate sentence for the case.” Id. Our review
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of the record leads us to conclude that the sentencing court
considered its obligations under § 3553(a) without any
impermissible presumption that a Guidelines sentence was
reasonable.
Next, Dickerson claims that the district court failed
to explain why it rejected his arguments for a below-Guidelines
sentence and that the career offender Guidelines should not be
applied to him. Dickerson preserved these issues for appeal
“[b]y drawing arguments from § 3553 for a sentence different
than the one ultimately imposed.” United States v. Lynn, 592
F.3d 572, 578 (4th Cir. 2010). Thus, our review is for an abuse
of discretion. Id. at 581, 583-84. If the district court
procedurally erred and thus abused its discretion, we must
reverse unless the error is harmless. Id. at 581, 585.
The court’s statements at sentencing, taken as a
whole, indicate that it considered and rejected each of
Dickerson’s arguments. The court determined that, based upon
the facts before it, Dickerson deserved a low-end Guidelines
sentence. On the record, we conclude without difficulty that
the district court did not procedurally err.
The judgment of the district court is affirmed. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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