UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4287
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONYAL LOCKLEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00231-JAB-3)
Submitted: October 28, 2014 Decided: November 4, 2014
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harvey A. Carpenter IV, THE LAW OFFICES OF HA (ALEC) CARPENTER
IV, Greensboro, North Carolina, for Appellant. Kyle David
Pousson, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tonyal Locklear appeals his conviction and
thirty-three month sentence imposed following his guilty plea to
possession of counterfeit federal reserve notes, in violation of
18 U.S.C. § 472 (2012). On appeal, Locklear’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 abused its discretion in
(1) denying Locklear’s request for a sentence at the bottom of
the Guidelines range, and (2) declining to order that the
sentence be served in the North Carolina Department of
Corrections, concurrently with his undischarged state sentence.
Locklear 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. For the reasons that follow, we affirm.
We review Locklear’s sentence for reasonableness,
applying “a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). We “must first ensure
that the district court committed no significant procedural
error,” including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors, and inadequate explanation of the sentence imposed.
Gall, 552 U.S. at 51; see United States v. Lynn, 592 F.3d 572,
575 (4th Cir. 2010).
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If we find no procedural error, we examine the
substantive reasonableness of a sentence under “the totality of
the circumstances.” Gall, 552 U.S. at 51. The sentence imposed
must be “sufficient, but not greater than necessary,” to satisfy
the goals of sentencing. See 18 U.S.C. § 3553(a). We presume
that a within-Guidelines sentence is substantively reasonable,
and the defendant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Counsel first questions whether the court abused its
discretion in imposing a sentence of thirty-three months,
instead of the thirty-month sentence he requested. We conclude
Locklear has failed to rebut the presumption of reasonableness
accorded his within-Guidelines sentence. See id.
Turning to Locklear’s request that his sentence run
concurrently with the state sentence he was already serving, “if
a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may
run concurrently or consecutively.” 18 U.S.C. § 3584(a) (2012);
see U.S. Sentencing Guidelines Manual (“USSG”) § 5G1.3(c). The
court is required to consider the § 3553(a) factors in
determining whether to run the sentences consecutively or
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concurrently. 18 U.S.C. § 3584(b). The Guidelines commentary
also enumerates a series of factors relevant to this
determination. USSG § 5G1.3 cmt. n.3(A). Specific
consideration of these factors, while recommended, is not
required by either statute or § 5G1.3(c). See United States v.
Nania, 724 F.3d 824, 838 (7th Cir. 2014); see also United
States v. Rodriguez, 715 F.3d 451, 451-52 (2d Cir. 2013), cert.
denied, 134 S. Ct. 1042 (2014).
Here, the court complied with its obligation to
consider the § 3553(a) factors. While the sentencing court did
not specifically address the USSG § 5G1.3 factors, this
information was before the court when it sentenced Locklear, and
we perceive no error.
Finally, with regard to Locklear’s request that he
serve his sentence in the North Carolina Department of Adult
Corrections, the Bureau of Prisons has sole authority to
determine whether a federal prisoner’s sentence is to be served
in federal or state court. See 18 U.S.C. § 3621(b) (2012);
Tapia v. United States, 131 S. Ct. 2382, 2390-91 (2011).
Therefore, this claim entitles Locklear to no relief.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Locklear’s conviction and sentence. This
court requires that counsel inform Locklear, in writing, of the
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right to petition the Supreme Court of the United States for
further review. If Locklear 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 Locklear.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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