United States v. Demario Pemberton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4633

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DEMARIO LADARL PEMBERTON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:12-cr-00055-JAB-1)

Submitted: January 29, 2013 Decided: January 31, 2013

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Demario Ladarl Pemberton pled guilty, pursuant to a

written plea agreement, to possession of a firearm by a felon,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). The

district court sentenced Pemberton to eighty-two months’

imprisonment, within his properly calculated Sentencing

Guidelines range. On appeal, Pemberton challenges the

substantive reasonableness of the sentence, contending that it

is greater than necessary to accomplish the goals of 18 U.S.C.

§ 3553(a) (2006). Finding no reversible error, we affirm.

We review Pemberton’s sentence for abuse of

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

When reviewing a sentence for substantive reasonableness, we

“examine[] the totality of the circumstances,” and, if the

sentence is within the properly calculated Guidelines range,

apply a presumption on appeal that the sentence is substantively

reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212,

216-17 (4th Cir. 2010). Such a presumption is rebutted only if

the defendant shows “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).

We conclude that Pemberton’s eighty-two-month, within-

Guidelines sentence is substantively reasonable, as Pemberton

2
fails to overcome the appellate presumption of reasonableness

afforded his sentence. The district court carefully considered

the § 3553(a) factors, noting the seriousness of Pemberton’s

§ 922(g) offense and related armed robbery, Pemberton’s prior

convictions, Pemberton’s lack of respect for the law, and the

need to protect the public. Moreover, the court considered the

particular needs of Pemberton in crafting his sentence,

recommending that he receive substance abuse and mental health

treatment. In sum, we conclude that the district court acted

well within its discretion by finding that Pemberton’s eighty-

two-month sentence was not greater than necessary to accomplish

the goals of 18 U.S.C. § 3553(a).

Accordingly, we affirm the district court’s judgment.

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