United States v. Michael Messer, JR., 4th Cir. (2013)
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Scribd Government DocsUnited States v. Michael Messer, JR., 4th Cir. (2013)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4379
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
MICHAEL BRUCE MESSER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior
District Judge. (8:12-cr-00708-HMH-1)
Submitted:
October 29, 2013
Decided:
November 12, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Bruce Messer, Jr., appeals his conviction and
thirty-month
sentence
imposed
following
his
guilty
plea
to
possession of a firearm and ammunition as a convicted felon, in
violation of 18 U.S.C. 922(g)(1) (2006).
On appeal, Messers
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning whether the district court imposed a
procedurally
unreasonable
sentence
explain the sentence imposed.
by
failing
to
adequately
Messer was notified of his right
to file a pro se supplemental brief but has not done so.
Government has declined to file a response brief.
The
Finding no
error, we affirm.
We review a sentence for reasonableness, applying a
deferential
abuse-of-discretion
States, 552 U.S. 38, 51 (2007).
standard.
Gall
v.
United
We must first ensure that the
district court committed no significant procedural error, such
as improper calculation of the Guidelines range, insufficient
consideration of the 18 U.S.C. 3553(a) (2006) factors and the
parties sentencing arguments, and inadequate explanation of the
sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010).
In announcing a sentence, the court must conduct an
individualized assessment justifying the sentence imposed and
2
rejection of arguments for a higher or lower sentence based on
3553.
Id. at 584 (internal quotation marks omitted).
Where
the defendant or prosecutor presents nonfrivolous reasons for
imposing
different
sentence
than
that
set
forth
in
the
advisory Guidelines, a district judge should address the partys
arguments
United
and
States
explain
v.
why
Carter,
he
564
has
rejected
F.3d
325,
(internal quotation marks omitted).
provide
sufficient
explanation
to
328
those
arguments.
(4th
Cir.
2009)
The district court must
demonstrate
that
it
considered the parties arguments and ha[d] a reasoned basis
for
exercising
[its]
own
legal
decisionmaking
authority.
Lynn, 592 F.3d at 576 (quoting Rita v. United States, 551 U.S.
338, 356 (2007)).
The explanation for a Guidelines sentence need not be
elaborate or lengthy, United States v. Johnson, 587 F.3d 625,
639 (4th Cir. 2009) (internal quotation marks omitted), and the
district court need not robotically tick through 3553(a)s
every subsection, particularly when imposing a within-Guidelines
sentence.
United States v. Powell, 650 F.3d 388, 395 (4th Cir.
2011) (internal quotation marks omitted).
A district court has
rendered an adequate explanation for a Guidelines sentence when
the
district
court
indicates
that
it
is
rest[ing]
[its]
decision upon the Commissions own reasoning that the Guidelines
sentence is a proper sentence (in terms of 3553(a) and other
3
congressional mandates) in the typical case, and that the judge
has
found
that
the
case
before
him
is
typical.
United
States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (quoting
Rita,
551
U.S.
at
357).
Additionally,
[t]he
context
surrounding a district courts explanation may imbue it with
enough
content
considered
the
properly.
for
us
to
3553(a)
evaluate
factors
both
and
whether
whether
the
it
court
did
so
United States v. Montes-Pineda, 445 F.3d 375, 381
(4th Cir. 2006).
We have thoroughly reviewed the record and conclude
that the district courts explanation, while brief, was legally
adequate to support its decision to reject Messers request for
a downward variance and sustain the within-Guidelines sentence
it ultimately imposed.
See Rita, 551 U.S. at 359 (Where a
matter is as conceptually simple as in the case at hand and the
record
makes
clear
that
the
sentencing
judge
considered
the
evidence and arguments, we do not believe the law requires the
judge
to
write
more
extensively.);
Hernandez,
603
F.3d
at
270-73 (finding explanation nearly identical to that supporting
Messers sentence adequate under Rita).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We
therefore
affirm
Messers
conviction
and
sentence.
This
court requires that counsel inform Messer, in writing, of the
4
right to petition the Supreme Court of the United States for
further review.
If Messer 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.
Counsels motion must state that a copy thereof
was served on Messer.
We dispense with oral argument because the facts and
legal
before
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
