UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5005
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD OLISLAGER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00030-BO-1)
Submitted: June 24, 2011 Decided: July 21, 2011
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In a prior appeal, we remanded this case for
resentencing, having determined that the district court failed
to provide an individualized explanation for its determination
that a 235-month sentence was an appropriate sentence to impose
on Richard Olislager following his guilty plea to receiving
child pornography in violation of 18 U.S.C. § 2252(a) (2006).
On remand, the district court again sentenced Olislager to 235
months, the bottom of the properly calculated advisory guideline
range. Olislager again appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that, in his view, there are no meritorious issues for appeal,
but questioning whether the sentence imposed was unreasonable
because the district court did not consider all of the
sentencing factors, see 18 U.S.C. § 3553(a) (2006), and
asserting that the Government, by explaining the error that led
to its agreement to make a sentencing recommendation, undermined
the recommendation and thus breached the plea agreement.
Olislager filed a pro se brief challenging two enhancements to
his offense level determined under the Sentencing Guidelines.
Finding no error, we affirm Olislager’s sentence.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
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procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, this court must decide
whether the district court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) (holding that, while the “individualized assessment need
not be elaborate or lengthy, . . . it must provide a rationale
tailored to the particular case . . . and [be] adequate to
permit meaningful appellate review”). If the sentence is free
of significant procedural error, the appellate court reviews the
substantive reasonableness of the sentence. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
In his pro se brief, Olislager contends that his
sentence is unreasonable because his offense level was enhanced
based on the use of a computer for possession, transmission,
receipt or distribution of materials, and also for a pattern of
activity that involved sexual abuse or exploitation of a minor,
relying on Olislager’s prior conviction and pending state court
charges, that were subsequently dismissed. In Olislager’s prior
appeal, our Anders review included a review of the determination
of Olislager’s advisory Guidelines range, and we found no error
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in the application of the enhancement Olislager now challenges.
Olislager’s challenges to the sentencing enhancements are barred
from this court’s consideration, under the mandate rule. United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the
mandate rule “forecloses relitigation of issues expressly or
impliedly decided by the appellate court[,]” as well as “issues
decided by the district court but foregone on appeal”).
Counsel contends that Olislager’s sentence is
procedurally unreasonable because the district court did not
consider all of the § 3553(a) factors, especially, the history
and personal characteristics of the Defendant. While the
sentencing court is required to consider the factors in
§ 3553(a), it need not robotically tick through each subsection
of § 3553(a). See United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). Here, the court noted that Olislager has a
history of predatory sexual conduct and that he is a recidivist.
In light of the likelihood of future conduct and the need to
protect the public, the court declined Olislager’s request and
the Government’s recommendation for a sentence below the
advisory Guidelines range. The court noted that lenient
treatment was not warranted in light of the seriousness of the
offense and the danger to the public. By this explanation, we
are satisfied that the district court has a “reasoned basis for
exercising [its] own legal decisionmaking authority.” United
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States v. Engle, 592 F.3d 495, 500 (4th Cir.) (internal
quotation omitted), cert. denied, 131 S. Ct. 165 (2010).
We therefore conclude that the district court did not
abuse its discretion in imposing the 235-month sentence—the
bottom of the advisory Guidelines range. See Gall, 552 U.S. at
41; United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007)
(applying appellate presumption of reasonableness to within
guidelines sentence).
Olislager also contends that the Government breached
the plea agreement by making the recommendation of a 180-month
sentence, as it agreed to do, but also explaining that the
agreement to make the recommendation was inadvertently included
in the version of the plea agreement that was signed and filed
with the court. The Supreme Court has held that a criminal
defendant has no right to an “enthusiastic” recommendation by
the prosecutor in order to comply with the term in the plea
agreement requiring the prosecutor to make a specific
recommendation. United States v. Benchimol, 471 U.S. 453, 455-
56 (1985); see United States v. Coleman, 208 F.3d 786, 792 (9th
Cir. 2000) (concluding that no breach occurs as long as
Government’s recommendation (“however grudgingly”) occurs before
sentencing); United States v. Badaracco, 954 F.2d 928, 941 (3d
Cir. 1992) (“government need not endorse the terms of its plea
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agreements enthusiastically”) (internal quotation marks
omitted).
Olislager failed to establish that the Government
breached its plea agreement. Under the terms of the plea
agreement, the Government was obligated to recommend a sentence
of 180 months. The Government satisfied this obligation by
making that recommendation to the court at sentencing.
Although, in response to inquiry by the court, the Government
explained that the prosecutor signed and presented the wrong
plea agreement and therefore erred by agreeing to this
recommendation, it nonetheless made the recommendation of a 180-
month sentence to the sentencing court, and therefore fulfilled
its obligation. The Government’s explanation did not result in
a breach of the plea agreement.
In accordance with Anders, we have reviewed the entire
relevant to this appeal and have found no meritorious issues.
This court requires that counsel inform Olislager, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Olislager 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 Olislager. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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