UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4640
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH MICHAEL PETTAWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. John T. Copenhaver,
Jr., District Judge. (3:12-cr-00196-1)
Submitted: February 26, 2014 Decided: March 10, 2014
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for
Appellant. Blaire L. Malkin, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Michael Pettaway appeals his conviction and the
thirty-nine-month sentence imposed by the district court
following his guilty plea to mailing a threatening
communication, in violation of 18 U.S.C. § 876(c). Pettaway’s
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether the district court (1)
erroneously denied Pettaway a two-level reduction for acceptance
of responsibility, and (2) improperly ran his sentence
consecutive to Pettaway’s undischarged state and federal
sentences. Pettaway was notified of his right to file a pro se
supplemental brief but has not done so. The Government has
declined to file a response brief. Following a careful review
of the record, we affirm.
I.
We review criminal sentences for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In so doing, we “must first
ensure that the district court committed no significant
procedural error,” such as failing to calculate or improperly
calculating the advisory Sentencing Guidelines range, failing to
consider the 18 U.S.C. § 3553(a) factors, selecting a sentence
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based on clearly erroneous facts, or failing to adequately
explain the chosen sentence. Gall, 552 U.S. at 51.
If a sentence is procedurally reasonable, we then
examine its substantive reasonableness, taking into account the
totality of the circumstances. United States v. Mendoza–
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). If the sentence is
within the Guidelines range, we presume on appeal that the
sentence is reasonable. United States v. Strieper, 666 F.3d
288, 295 (4th Cir. 2012).
A.
Counsel first challenges the district court’s decision
to deny Pettaway a two-level reduction for acceptance of
responsibility under U.S. Sentencing Guideline § 3E1.1(a). We
review this decision for clear error. United States v. Dugger,
485 F.3d 236, 239 (4th Cir. 2007). To merit this reduction, the
defendant must establish by a preponderance of the evidence
“that he has clearly recognized and affirmatively accepted
personal responsibility for his criminal conduct.” United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). Because
the sentencing court is in the best position to evaluate a
defendant’s acceptance of responsibility, we afford great
deference to the district court’s determination. Dugger, 485
F.3d at 239.
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Although Pettaway pleaded guilty, he continued to
issue threats against his victim. This conduct belies his
assertion that he accepted responsibility for his criminal
conduct. Based on the facts before the district court, it did
not clearly err in denying the reduction.
B.
Counsel next challenges the district court’s decision
to impose this sentence consecutive to Pettaway’s undischarged
state and federal sentences. The district court has discretion
to make a defendant’s federal sentence consecutive to or
concurrent with an undischarged sentence previously imposed.
See 18 U.S.C. § 3584(a); Sester v. United States, 132 S. Ct.
1463, 1468 (2012). In exercising this discretion, the court is
statutorily required to consider the § 3553(a) factors. See 18
U.S.C. § 3584(b). We review a district court’s decision to
impose a concurrent or consecutive sentence for abuse of
discretion. See United States v. Lynn, 592 F.3d 572, 578 (4th
Cir. 2010).
Pettaway committed the instant offense shortly after
he was convicted and sentenced for committing a similar offense
against another victim. Furthermore, he had a long history of
sending threatening letters to the victim in this case, and he
continued making threats after pleading guilty. In these
circumstances, the district court did not abuse its discretion
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in requiring that Pettaway serve this sentence consecutive to
his undischarged state and federal sentences.
C.
Finally, the district court considered Pettaway’s
arguments for a sentence at the low end of the Guidelines.
However, it concluded that a sentence at the high end was
necessary to provide deterrence and protect the public, based on
Pettaway’s long history of sending threatening letters and in
light of the timing of the instant offense. Because the
district court acted within its considerable discretion in
making this finding, we conclude that Pettaway has not rebutted
the presumption of reasonableness that attaches to his within-
Guidelines sentence. We thus conclude that Pettaway’s sentence
is both procedurally and substantively reasonable.
II.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Pettaway’s conviction and sentence. This
court requires that counsel inform Pettaway, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Pettaway 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
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representation. Counsel’s motion must state that a copy thereof
was served on Pettaway.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before this court and argument will not aid the decisional
process.
AFFIRMED
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