UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5022
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ENERVA W. TROTMAN, a/k/a Charles Carlos Clark,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:91-cr-00092-H-1)
Submitted: June 8, 2012 Decided: June 22, 2012
Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
circuit Judge.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enerva Trotman appeals from the 420-month sentence
imposed after remand and resentencing on drug trafficking and
firearm counts. Trotman argues that his sentence is
procedurally and substantively unreasonable. Finding no error,
we affirm.
We review a sentence imposed by the district court for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51. In determining procedural reasonableness, the court
considers whether the district court properly calculated the
defendant’s Sentencing Guidelines range, treated the Guidelines
as mandatory, considered the 18 U.S.C.A. § 3553(a) (West 2006 &
Supp. 2012) sentencing factors, selected a sentence based on
clearly erroneous facts, or failed to explain sufficiently the
selected sentence. Id. at 49-51. “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).
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Trotman first argues that his sentence is procedurally
unreasonable because the district court failed to explain how it
calculated the 8.4 kilogram drug quantity and did not have
sufficient evidence to find that amount, the court treated the
Sentencing Guidelines as mandatory, and it failed to state
individualized reasons for its sentence.
First, there is sufficient evidence in the record to
support the court’s drug quantity finding. The pre-sentence
report set out the quantities involved as relevant conduct,
including that Trotman told law enforcement officers that for
two years he obtained five ounces of crack cocaine every week.
Trotman does not dispute that he gave the statement to officers,
but maintains it was puffery. The court stated that it believed
Trotman was involved with 14.7 kilograms, but that it considered
Trotman’s puffery argument and said that crediting the argument
to reduce Trotman’s involvement by almost half, Trotman was
certainly responsible for 8.4 kilograms of crack. The court’s
method of reduction was duly explained and is not procedural
error. To the extent that Trotman argues that the court could
not consider relevant conduct in the dismissed counts, he is
wrong. United States v. Perry, 560 F.3d 246, 258 (4th Cir.
2009) (district courts are permitted to consider acquitted or
uncharged conduct).
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Trotman also argues that the district court treated
the Guidelines as mandatory and points to three statements made
by the court during re-sentencing. The statements identified do
not express that the court believed that it was bound by the
Sentencing Guidelines range. The court referred to the
Guidelines as advisory several times during the proceeding and
announced its sentence “in accordance with the Supreme Court’s
decision in United States v. Booker.” The district court
clearly believed it had the authority to grant a downward
variance but that the reasons for doing so were inadequate.
Trotman also argues that the court committed
procedural error by stacking his sentences on counts two, three,
and four to the extent necessary to achieve the 360-month
Guidelines range. The court did not err. If the total
punishment required by the Guidelines exceeds the highest
statutory maximum, the court must impose consecutive terms of
imprisonment to the extent necessary to achieve the total
punishment. U.S. Sentencing Guidelines Manual § 5G1.2(d)
(2010). The court is not prevented from stacking sentences when
the counts have been grouped. See United States v. Chase, 296
F.3d 247, 250-51 (4th Cir. 2002).
Trotman’s last procedural error argument is that the
court failed to state individualized reasons for the sentence.
The “individualized assessment need not be elaborate or lengthy,
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but it must provide a rationale tailored to the particular case
at hand and adequate to permit ‘meaningful appellate review.’”
Carter, 564 F.3d at 330 (quoting Gall, 552 U.S. at 51).
Throughout the proceedings, the court made findings and comments
on the factors influencing sentencing sufficient to permit
meaningful appellate review. Trotman contended that his
co-conspirator received a lower sentence, but the court noted
that the defense did not know what the co-conspirator’s criminal
history was, nor did he evade authorities for fifteen years as
Trotman had. The court noted the large amount of cocaine base
involved, that Trotman had fled and evaded the authorities for
fifteen years, was an illegal alien, and that Trotman provided
no basis for a downward variance. The court also expressly
adopted the Government’s sentencing arguments that Trotman had a
long criminal history, lacked meaningful employment, and lacked
remorse or acceptance of his criminal conduct. The transcript
clearly indicates that the court considered Trotman’s argument
regarding his post-sentence rehabilitation, but did not find it
sufficient to grant a downward variance or other significant
reduction. Accordingly, the sentence was procedurally
reasonable.
If the sentence is free of significant procedural
error, this court then reviews the sentence for substantive
reasonableness, “tak[ing] into account the totality of the
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circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, the court applies a
presumption on appeal that the sentence is reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Such a presumption is rebutted only by showing “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). Trotman has
not rebutted the presumption that his sentence is presumptively
reasonable. The district court did not abuse its discretion in
selecting the sentence imposed.
We therefore affirm the sentence. 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
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