United States v. Bobby Richardson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5015

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BOBBY RICHARDSON, a/k/a Ice,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00015-JRS-1)

Submitted: June 30, 2011 Decided: August 4, 2011

Before GREGORY, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles D. Lewis, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A jury convicted Bobby Richardson of possession with

intent to distribute heroin, in violation of 21 U.S.C. § 841(a)

(2006); distribution of heroin, in violation of § 841(a);

possession of a firearm after being convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1) (2006); and six counts of

forging currency, in violation of 18 U.S.C. § 471 (2006). The

district court sentenced him to 288 months’ imprisonment.

Counsel has submitted this appeal pursuant to Anders v.

California, 386 U.S. 738 (1967), averring there are no

meritorious issues for appeal but asking this court to review

the validity of the warrant to search Richardson’s business and

the reasonableness of Richardson’s sentence. Richardson has

filed pro se supplemental briefs. After our initial review, we

ordered the parties to address whether the district court

adequately stated its reasons for imposing the chosen sentence

and, if not, whether its failure to do so constitutes harmless

error. Having fully considered the arguments raised by

Richardson and the Government, * we affirm.

*
In his pro se briefs, Richardson contends that the
prosecutor improperly vouched for the credibility of an
informant during closing argument. We have reviewed this claim
and conclude that it lacks merit. Richardson also asserts that
counsel rendered ineffective assistance by failing to discover
that Richardson’s prior convictions were invalid. We decline to
review this claim on direct appeal. United States v.
(Continued)
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 Richardson first challenges the validity of the search

warrant. The relevant inquiry is whether, under the totality of

the circumstances, the issuing judge had a substantial basis for

concluding there was probable cause to issue the warrant.

Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v.

Grossman, 400 F.3d 212, 217 (4th Cir. 2005). In conducting this

inquiry, we avoid applying “‘hypertechnical’ scrutiny of

affidavits lest police officers be encouraged to forgo the

warrant application process altogether.” United States v.

Robinson, 275 F.3d 371, 380 (4th Cir. 2001) (quoting Gates, 462

U.S. at 236). This court reviews the district court’s “factual

findings underlying a motion to suppress for clear error[] and

. . . legal determinations de novo.” Grossman, 400 F.3d at 216.

Our review of the record leads us to conclude that the district

court’s factual findings were not clearly erroneous, that the

warrant was valid and supported by probable cause, and that the

district court did not err in denying Richardson’s motion to

suppress.

Richardson also challenges the reasonableness of his

sentence. This court applies an abuse of discretion standard of

review as to this claim. Gall v. United States, 552 U.S. 38, 51

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (providing
standard).

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(2007); see also United States v. Llamas, 599 F.3d 381, 387 (4th

Cir. 2010). Reasonableness review requires appellate

consideration of both the procedural and substantive

reasonableness of a sentence. Gall, 552 U.S. at 51. In

determining the procedural reasonableness of a sentence, we

consider whether the district court properly calculated the

defendant’s 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.

Id. “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

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

The explanation must be sufficient to allow for “meaningful

appellate review,” id. (internal quotation marks omitted), such

that the appellate court need “not guess at the district court’s

rationale.” Id. at 329.

Richardson correctly asserts that the district court

failed to offer any explanation for the sentence it imposed,

thereby rendering the sentence procedurally unreasonable. Thus,

“we [must] reverse unless . . . the error was harmless.” United

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). “[T]he

[G]overnment may avoid reversal . . . if it demonstrates that

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the error did not have a substantial and injurious effect or

influence on the result and we can [] say with . . . fair

assurance[] . . . that the district court’s explicit

consideration of [the defendant’s] arguments would not have

affected the sentence imposed.” United States v. Boulware, 604

F.3d 832, 838 (4th Cir. 2010) (internal quotation marks

omitted); Lynn, 592 F.3d at 585. With this standard in mind, we

conclude that the Government satisfied its burden of proving

that the district court’s procedural error was harmless. See

United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006)

(stating burden). Finally, although Richardson asserts that his

within-Guidelines sentence was substantively unreasonable, we

reject his claim. See United States v. Allen, 491 F.3d 178, 193

(4th Cir. 2007) (“A sentence within the proper Sentencing

Guidelines range is presumptively reasonable.”). Thus, the

district court did not abuse its discretion in sentencing

Richardson.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment. This court

requires that counsel inform Richardson, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Richardson requests that a petition be

filed, but counsel believes that such a petition would be

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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 Richardson. 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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