United States v. Reginald Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4524

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

REGINALD SCOTT ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:08-cr-00035-gmw-pms-3)

Submitted: October 29, 2010 Decided: October 3, 2011

Before MOTZ, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Julia C. Dudley, United States Attorney, Jennifer R.
Bockhorst, Assistant United States Attorney, Abingdon, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Reginald Scott Anderson appeals from the 87-month

sentence imposed following his guilty plea to one count of

conspiracy to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006), and four counts of

possession with intent to distribute cocaine base, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c) (2006). Finding no

error, we affirm.

This court reviews a sentence for reasonableness,

applying an abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). This review requires appellate

consideration of both the procedural and the substantive

reasonableness of a sentence. Id.

In determining procedural reasonableness, we first

assess whether the district court properly calculated the

defendant’s advisory guidelines range. Id. at 49-51. We then

determine whether the district court considered the 18 U.S.C. §

3553(a) (2006) factors and any arguments presented by the

parties, treated the guidelines as advisory, selected a sentence

based on “clearly erroneous facts,” and sufficiently explained

the selected sentence. Gall, 552 U.S. at 51; United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). We then review

whether the district court made “an individualized assessment

based on the facts presented.” Gall, 552 U.S. at 50; see United

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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”) (internal quotation marks omitted).

Finally, we review the substantive reasonableness of

the sentence, “taking into account the ‘totality of the

circumstances, including the extent of any variance from the

[g]uidelines range.’” Pauley, 511 F.3d at 473 (quoting Gall,

552 U.S. at 51). On appeal, we accord a sentence within the

properly calculated guidelines range a presumption of

reasonableness. United States v. Abu Ali, 528 F.3d 210, 261

(4th Cir. 2008).

The district court followed the necessary procedural

steps in sentencing Anderson, properly calculating, treating as

advisory, and considering the Guidelines range; performing an

individualized assessment of the relevant § 3553(a) factors; and

stating in open court the reasons for its sentence. The court

acted within its discretion in considering Anderson’s request

for a reduced sentence in light of Kimbrough v. United States,

552 U.S. 85 (2007), as well as guidance from the Department of

Justice regarding the Administration’s position on the

crack/powder cocaine sentencing disparity. Anderson’s sentence,

which is at the low end of the advisory Guidelines range, is

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presumed on appeal to be reasonable, and Anderson has not

rebutted this presumption. We conclude that the district court

did not abuse its discretion in sentencing Anderson.

On appeal, Anderson asks us to vacate the judgment and

remand the case so that he might be sentenced pursuant to the

terms of the Fair Sentencing Act of 2010 (“FSA”). As we

recently held, however, the FSA does not apply retroactively.

See United States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011)

(holding that the FSA did not apply retroactively to cases on

appeal), pet. for cert. filed, (Aug. 17, 2011) (No. 11-5912).

Accordingly, as Anderson was convicted and sentenced prior to

the effective date of the Act, he is not entitled to relief in

this case.

We therefore affirm the judgment of the district

court. 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