UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER LEE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00453-HFF-1)
Submitted: June 27, 2011 Decided: August 18, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Lee Smith pled guilty without a plea
agreement to possession with intent to distribute 500 grams or
more of cocaine and possession with intent to distribute a
quantity of cocaine and fifty grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006). The district court
sentenced him to 168 months’ imprisonment, the bottom of the
Guidelines range. In his Anders 1 brief, Smith’s appellate
counsel states there are no meritorious issues for appeal but
asks the court to review the reasonableness of Smith’s sentence
and whether Smith’s trial counsel rendered ineffective
assistance at sentencing. 2 We affirm.
Although counsel suggests that the sentence is
unreasonable, he points to no specific error. Appellate courts
review a sentence for reasonableness, applying an abuse of
1
Anders v. California, 386 U.S. 738 (1967).
2
In his pro se supplemental brief, Smith likewise argues
that his attorney at sentencing rendered ineffective assistance.
This court “may address [claims of ineffective assistance] on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears from the record.” United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). We conclude that Smith fails to meet
this standard and decline to address these claims in this direct
appeal. Smith also contends on appeal that he should be
resentenced in accordance with the Fair Sentencing Act of 2010.
His claim is foreclosed by our decision in United States v.
Bullard, __ F.3d __, __, 2011 WL 1718894, at *9-*11 (4th Cir.
May 6, 2011) (No. 09-5214).
2
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The court reviews first the reasonableness of the
process by which the sentencing court arrived at its decision
and then reviews the reasonableness of the sentence itself. Id.
Because counsel did not argue for any certain sentence, our
review is for plain error. See United States v. Lynn, 592 F.3d
572, 577-78, 580 (4th Cir. 2010); see also United States v.
Hernandez, 603 F.3d 267, 270 (4th Cir. 2010) (reviewing claim of
procedural unreasonableness for plain error because defendant
did not argue for sentence different from sentence he received).
In determining the procedural reasonableness of a
sentence, we consider whether the district court properly
calculated the Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. “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).
Where, as here, the district court imposed a within-Guidelines
sentence, the explanation may be “less extensive, while still
individualized.” United States v. Johnson, 587 F.3d 625, 639
3
(4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). However,
that explanation must be sufficient to allow for “‘meaningful
appellate review,’” Carter, 564 F.3d at 330 (quoting Gall, 552
U.S. at 50), such that the appellate court need “not guess at
the district court’s rationale.” Id. at 329.
Here, the district court properly calculated Smith’s
Guidelines range. Although the district court did not give a
reasoned explanation for the sentence it imposed, 3 the record
does not indicate that the court might have imposed a lower
sentence. See Hernandez, 603 F.3d at 273 (stating that error
affects substantial rights if defendant “show[s] that, absent
the error, a different sentence might have been imposed”).
Because Smith cannot show that the error prejudiced his
substantial rights, we conclude that the district court
committed no reversible procedural error.
We next assess the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Where, as here,
a defendant’s sentence falls within the Guidelines range, the
3
We note that the district court did not have the benefit
of our decisions in Carter, Lynn, and Hernandez at the time it
sentenced Smith.
4
district court’s decision enjoys a presumption of
reasonableness. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007) (“A sentence within the proper Sentencing Guidelines
range is presumptively reasonable.”). Smith has failed to rebut
that presumption of reasonableness.
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 Smith, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Smith 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 Smith. 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
5