United States v. Darrith Beall

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4985

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DARRITH LAVON BEALL,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00900-PMD-1)

Submitted: June 17, 2013 Decided: July 9, 2013

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Darrith Lavon Beall pled guilty to possession with

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C.A. § 841(a)(1) (West 2006 & Supp. 2013),

and was sentenced to 151 months’ imprisonment. The district

court later construed Beall’s 18 U.S.C. § 3582(c)(2) (2006)

motion for reduction of sentence as a 28 U.S.C.A. § 2255

(West Supp. 2013) motion, calculated his Guidelines range under

the U.S. Sentencing Guidelines Manual (2011) at 151 to 188

months’ imprisonment, granted Beall § 2255 relief, and, after

imposing a downward variance, sentenced him to 139 months’

imprisonment. On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating there are no

meritorious issues for appeal, but questioning whether the

139-month sentence is reasonable. Beall was informed of his

right to file a pro se supplemental brief, but he has not done

so. The Government declined to file a responsive brief. *

We affirm.

We review the 139-month sentence for reasonableness

under a “deferential abuse-of-discretion standard.” Gall v.

*
We note that the Government also did not file a
cross-appeal to challenge the lawfulness of the district court’s
decision to impose the 139-month sentence. Therefore, any
alleged error in this regard may not be addressed on appeal.
Greenlaw v. United States, 554 U.S. 237, 243-53 (2008).

2
United States, 552 U.S. 38, 41, 51 (2007). This

abuse-of-discretion standard involves two steps; under the

first, we examine the sentence for significant procedural

errors, and under the second, we review the substance of the

sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007) (examining Gall, 552 U.S. at 50-51). When the district

court imposes a variant sentence, we consider “whether

the . . . court acted reasonably both with respect to its

decision to impose such a sentence and with respect to the

extent of the divergence from the sentencing range.”

United States v. Hernandez-Villanueva, 473 F.3d 118, 123

(4th Cir. 2007).

We conclude after review of the record that the

district court did not abuse its discretion in imposing the

139-month sentence. The court properly calculated Beall’s

Guidelines range and heard argument from counsel for both

parties and allocution from Beall. The court imposed the

139-month sentence after considering relevant sentencing factors

under 18 U.S.C. § 3553(a) (2006) and explaining that a downward

variance was warranted in light of Beall’s rehabilitation

efforts while incarcerated. Further, counsel does not

suggest - and review of the record does not reveal any basis for

concluding - that the sentence is substantively unreasonable.

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Additionally, in accordance with Anders, we have

reviewed the remainder of the record and have found no

meritorious issues for review. We therefore affirm the district

court’s amended judgment. This court requires that counsel

inform Beall, in writing, of the right to petition the Supreme

Court of the United States for further review. If Beall

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 Beall.

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