United States v. Tiffany Markle

                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 20-4366


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

TIFFANY L. MARKLE,

                     Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:19-cr-00014-JPB-JPM-1)


Submitted: June 25, 2021                                            Decided: July 6, 2021


Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John A. Schwab, PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP,
Pittsburgh, Pennsylvania, for Appellant. Shawn Michael Adkins, Assistant United States
Attorney, Robert Hugh McWilliams, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Tiffany L. Markle appeals the district court’s judgment after pleading guilty to

conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(C), 846.

The district court determined that her Guidelines range was 151 to 188 months in prison

but granted a three-level downward departure and sentenced Markle at the low end of the

departure range to 120 months. The district court denied her request for a lower sentence.

On appeal, Markle’s attorney has filed a brief under Anders v. California, 386 U.S. 738

(1967), asserting that there are no meritorious grounds for appeal but raising the issue of

whether the district court erred by imposing a sentence of 120 months. ∗ Markle was

notified of her right to file a pro se supplemental brief but has not done so. We affirm.

       “This Court ‘review[s] all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.’” United

States v. Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (quoting Gall v. United States,

552 U.S. 38, 41 (2007)). “First, we ‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines range.’”



       ∗
         To the extent that Markle challenges the district court’s decision not to grant a
second downward departure under the Sentencing Guidelines, as opposed to a variance, we
may not review the decision. See United States v. Torres-Reyes, 952 F.3d 147, 151 n.2
(4th Cir. 2020). We thus limit our review to the decision to deny a lower variant sentence.

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United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (quoting Gall, 552 U.S. at 51).

“If the Court ‘find[s] no significant procedural error, [it] then consider[s] the substantive

reasonableness of the sentence imposed.’” United States v. Arbaugh, 951 F.3d 167, 172

(4th Cir. 2020) (citation omitted).

       “As is well understood, to meet the procedural reasonableness standard, a district

court must conduct an individualized assessment of the facts and arguments presented and

impose an appropriate sentence, and it must explain the sentence chosen.” United States

v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation marks and citations

omitted). “Specifically, a district court’s explanation should provide some indication []

that the court considered the § 3553(a) factors and applied them to the particular defendant,

and also that it considered a defendant’s nonfrivolous arguments for a lower sentence.” Id.

at 212-13 (internal quotation marks and citations omitted). “Importantly, it is also well

established that our review of a district court’s sentencing explanation is not limited to the

court’s statements at the moment it imposes sentence,” but rather, we “look at the full

context” of those statements when evaluating them. Id. at 213.

       “If the sentence ‘is procedurally sound, [we] then consider the substantive

reasonableness of the sentence,’ taking into account the totality of the circumstances.”

United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019) (quoting Gall, 552 U.S. at

51). A sentence within the Guidelines range is presumptively reasonable. United States v.

Smith, 919 F.3d 825, 841 n.12 (4th Cir. 2019) (citation omitted). A defendant can only

rebut the presumption by showing the sentence is unreasonable when measured against the

18 U.S.C. § 3553(a) factors. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

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       We have reviewed the record and conclude that Markle’s sentence is procedurally

and substantively reasonable; and the district court did not err or abuse its discretion in

denying her a lower sentence. The district court properly calculated her Guidelines range,

granted a three-level downward departure, considered the § 3553(a) factors and Markle’s

arguments for a lower sentence, and adequately explained its decision. Moreover, she fails

to rebut the presumption that her sentence is substantively reasonable.

       In accordance with Anders, we have reviewed the entire record and have found no

meritorious issues for appeal. We therefore affirm the district court’s judgment. This court

requires that counsel inform his or her client, in writing, of his or her right to petition the

Supreme Court of the United States for further review. If the client 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 the client. 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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