United States v. Warren, 4th Cir. (2009)
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Scribd Government DocsUnited States v. Warren, 4th Cir. (2009)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4852
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
TROY WARREN,
Defendant Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:06-cr-00450-FDW-1)
Submitted:
July 28, 2009
Decided:
August 10, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Elizabeth Blackwood, FEDERAL DEFENDERS OF WESTERN NORTHERN
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy
robbery,
in
Warren
pled
violation
of
guilty
18
to
U.S.C.
three
counts
2113(a)
of
bank
(2006).
The
probation office prepared a presentence investigation report in
which Warren was determined to be a career offender with an
advisory guidelines range of 151 to 188 months imprisonment.
At the conclusion of Warrens sentencing hearing, the district
court sentenced Warren to 180 months imprisonment each count,
to
be
served
concurrently.
Warren
timely
noted
his
appeal.
Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967).
Warren has also filed two pro se supplemental
briefs.
In his counseled Anders brief, Warren suggests that
his
sentence
is
procedurally
and
substantively
unreasonable.
This court reviews a sentence imposed by a district court under
a
deferential
abuse
of
discretion
standard.
Gall
v.
United
States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007); United
States
v.
Evans,
526
F.3d
155,
161
(4th
Cir.
2008).
In
reviewing a sentence, the appellate court must first ensure that
the
district
court
committed
no
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
2
sentence - including an explanation for any deviation from the
Guidelines range.
procedural
Gall, 128 S. Ct. at 597.
errors,
the
appellate
court
If there are no
then
substantive reasonableness of the sentence.
considers
Id.
the
A substantive
reasonableness review entails taking into account the totality
of the circumstances.
473 (4th Cir. 2007).
United States v. Pauley, 511 F.3d 468,
Further, this court may presume a sentence
within the guidelines range to be reasonable.
Id.
Even if the
reviewing court would have reached a different result, this fact
alone is insufficient to justify reversal of the district court.
Id. at 474.
When rendering a sentence, the district court must
make an individualized assessment based on the facts presented.
United
States
(quoting
omitted)).
v.
Gall,
Carter,
128
S.
Accordingly,
564
F.3d
Ct.
at
325,
597)
sentencing
328
(4th
(internal
court
must
Cir.
2009)
quotations
apply
the
relevant 3553(a) factors to the particular facts presented and
must state in open court the particular reasons that support
its chosen sentence.
Id.
Stating in open court the particular
reasons for a chosen sentence requires the district court to set
forth enough to satisfy this court that the district court has a
reasoned basis for its decision and has considered the parties
arguments.
court
to
Id.
Carter, though, does not require a sentencing
robotically
tick
through
3
otherwise
irrelevant
subsections of 3553(a).
See United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006).
According to Warren, the district court, in imposing
his sentence, failed to properly consider the first 18 U.S.C.
3553(a)
effect,
(2006)
turned
factor
himself
by
in
failing
to
to
consider
authorities
and
that
by
he,
in
failing
to
consider that he confessed to two additional robberies for which
he was not yet a suspect.
We have reviewed the record and
conclude that Warrens argument is wholly without merit.
The
district
for
court
provided
thorough,
detailed
explanation
Warrens sentence that specifically addressed Warrens principal
sentencing argument regarding his addiction to crack cocaine.
The district court also properly calculated Warrens advisory
guidelines range, heard the arguments of counsel, and listened
to Warrens allocution prior to imposing sentence.
Accordingly,
the district court did not commit procedural error in sentencing
Warren.
Also, the record fails to rebut the presumption of
reasonableness we apply on appeal to Warrens within-guidelines
See Rita v. United States, 551 U.S. 338, ___, 127 S.
sentence.
Ct. 2456, 2459 (2007); Pauley, 511 F.3d at 473.
Warren has also filed two pro se supplemental briefs
in which he raises three arguments.
he
was
attempted
improperly
armed
classified
robbery
under
as
New
4
First, Warren argues that
a
career
York
law
offender
because
encompasses
both
violent
and
non-violent
conduct.
Warrens
claim
merit.
See N.Y. Penal Law 110.00 & 160.15.
is
without
Warren also
claims that, because he was convicted of attempted armed robbery
- as opposed to armed robbery - his offense was improperly used
to
apply
the
career
offender
enhancement.
This
argument,
however, ignores that a crime of violence within the meaning
of
U.S.
Sentencing
Guidelines
Manual
(USSG)
includes an attempt to commit a crime of violence.
4B1.1(a)
USSG 4B1.2
comment n.1.
Finally, Warren argues that his trial counsel was
ineffective.
Claims of ineffective assistance of counsel are
not cognizable on direct appeal unless the record conclusively
establishes
trial
counsels
ineffective
assistance.
United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
The
record here does not conclusively establish that trial counsel
provided ineffective assistance.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We
therefore
affirm
Warrens
conviction
and
sentence.
This
court requires that counsel inform Warren, in writing, of the
right to petition the Supreme Court of the United States for
further review.
If Warren 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 Warren.
We dispense with oral argument because the facts and
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
