Opinion
No. 13-4521
03-27-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD SCOTT SMITH, Defendant - Appellant.
James E. Quander, Jr., Winston-Salem, North Carolina, for Appellant. Timothy Nicholas Matkins, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
UNPUBLISHED
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:12-cr-00383-JAB-1) Before GREGORY, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. James E. Quander, Jr., Winston-Salem, North Carolina, for Appellant. Timothy Nicholas Matkins, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Donald Scott Smith pled guilty, pursuant to a plea agreement, to armed robbery involving a controlled substance, in violation of 18 U.S.C. § 2118(a), (c)(1) (2012), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2012). The district court sentenced Smith to a total sentence of 114 months' imprisonment, reflecting a thirty-month term on the robbery count, which was the bottom of the advisory Guidelines range, and a consecutive eighty-four-month term on the firearm count, which was the statutory mandatory minimum sentence. Smith timely appealed.
Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but questioning whether Smith's sentence is reasonable. Smith was advised of his right to file a pro se supplemental brief, but he did not file one. Finding no error, we affirm.
We review the district court's sentence, "whether inside, just outside, or significantly outside the Guidelines range[,] . . . under a deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007). This standard of review 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) (analyzing Gall, 552 U.S. at 50-51). Significant procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2012)] 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." Gall, 552 U.S. at 51.
If there are no significant procedural errors, we then consider the substantive reasonableness of the sentence, "tak[ing] into account the totality of the circumstances." Id. If the sentence is within or below the properly calculated Guidelines range, this Court applies a presumption on appeal that the sentence is substantively reasonable. United States v. Weon, 722 F.3d 583, 590 (4th Cir. 2013). 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 have reviewed the record and conclude that Smith's sentence is both procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the 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 Smith, in writing, of the right to petition the Supreme Court of the United States for further review. If Smith 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 Smith. 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