United States v. Stark

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4162

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

TRAVIS STARKS,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-00467-HFF-3)

Submitted: March 9, 2010 Decided: March 26, 2010

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Everett P. Godfrey, Jr., GODFREY LAW FIRM, Greenville, South
Carolina, for Appellant. Robert Frank Daley, Jr., Assistant
United States Attorney, Columbia, South Carolina, Regan
Alexandra Pendleton, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Travis Starks appeals from a 188-month sentence

imposed following a guilty plea to conspiracy to possess with

intent to distribute and to distribute 500 grams or more of

cocaine, 50 grams or more of cocaine base, and 100 grams or more

of heroin in violation of 21 U.S.C. § 846 (2006). Starks’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), stating that he believes there are no meritorious

issues for appeal, but questioning the reasonableness of

Starks’s sentence. Starks was advised of his right to file a

pro se brief, but has not done so. The Government has not filed

a brief. Finding no reversible error, we affirm.

When a sentence is challenged on appeal, this court

reviews the sentence for both procedural and substantive

reasonableness using an abuse of discretion standard. See

Gall v. United States, 552 U.S. 38, 51 (2007). Procedural

errors include failing to consider the factors articulated in

18 U.S.C. § 3553(a) (2006), treating the U.S. Sentencing

Guidelines Manual (2008) as mandatory, or “failing to adequately

explain the chosen sentence.” Id. Although not raised by

Starks’s counsel in the Anders brief, a review of the record

revealed an issue regarding the procedural reasonableness of

Starks’s sentence, specifically, whether the district court

2
erred in failing to provide an individualized rationale when

sentencing Starks.

In evaluating the sentencing court’s explanation of a

selected sentence, this court has held consistently that, while

a district court must consider the sentencing factors in 18

U.S.C. § 3553(a) (2006) and explain its sentence, it need not

explicitly reference § 3553(a) or discuss every factor on the

record, particularly when the court imposes a sentence within a

properly calculated guidelines range. United States v. Johnson,

445 F.3d 339, 345 (4th Cir. 2006). At the same time, however,

the district court “must make an individualized assessment based

on the facts presented.” Gall, 552 U.S. at 50; see also Rita v.

United States, 551 U.S. 338, 356-57 (2007). The reasons

articulated by the district court for a given sentence need not

be “couched in the precise language of § 3553(a),” so long as

the “reasons can be matched to a factor appropriate for

consideration . . . and [are] clearly tied to [defendant’s]

particular situation.” United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007). As this court recently explained in United

States v. Carter, 564 F.3d 325 (4th Cir. 2009), while the

“individualized assessment [of each defendant] need not be

elaborate or lengthy, . . . it must provide a rationale tailored

to the particular case at hand and [be] adequate to permit

meaningful appellate review.” Id. at 330 (internal quotation

3
marks omitted). Thus, a conclusory statement that a specific

sentence is the proper one does not satisfy the district court’s

responsibilities. Id. at 328-29. In addition, this court

cannot presume that the district court adopted the arguments of

one of the parties while imposing sentence; an appellate court

may not guess at the district court’s rationale. Id. at 329-30.

Starks failed to preserve for appeal the adequacy of

the district court’s explanation for imposition of his sentence.

Therefore, this court reviews his sentence for plain error. See

United States v. Branch, 537 F.3d 328, 343 (4th Cir. 2008); Fed.

R. Crim. P. 52(b). Accordingly, Starks must demonstrate that

plain error was committed, and that the error affected his

substantial rights. Fed. R. Crim. P. 52(b).

Here, the record demonstrates that at sentencing, the

district court failed to provide an individualized rationale for

Starks’s sentence as required by our holding in Carter. The

district court merely stated that the sentence was entered

following consideration of the Guidelines and the relevant

§ 3553(a) factors, but did not further explicate the nature or

extent of that consideration, or how the sentencing factors

specifically related to Starks’s case. Moreover, the court did

not address the issues raised by Starks or his counsel at the

hearing regarding Starks’s drug use or his minor role in the

offense, or provide any other reason for choosing the sentence

4
imposed. Accordingly, we find that the district court’s

explanation constituted error, and that the error was plain.

Nonetheless, the record does not support a finding

that this error affected Starks’s substantial rights. Starks’s

Guidelines range, which was properly calculated, was 188 to 235

months. Both Starks and his counsel requested only the district

court’s “mercy,” and did not seek any specific sentence within

or below the Guidelines range. The district court sentenced

Starks to 188 months, the lowest sentence within the Guidelines

range. Thus, the district court’s explanation did not have a

prejudicial effect on the sentenced imposed. Additionally,

because the sentence was within the properly calculated

Guidelines range, this court presumes on appeal that the

sentence is substantively reasonable. See United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007). Starks has offered no

argument to rebut this presumption.

In accordance with Anders, we have reviewed the entire

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 his client, in writing,

of his right to petition the Supreme Court of the United States

for further review. If Starks 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

5
withdraw from representation. Counsel’s motion must state that

a copy thereof was served on Starks. 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