Filed: Jul. 09, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4846 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CLEVELAND JORDAN, JR., Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:06-cr-00033-RBS-TEM-1) Submitted: June 11, 2009 Decided: July 9, 2009 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michae
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4846 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CLEVELAND JORDAN, JR., Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:06-cr-00033-RBS-TEM-1) Submitted: June 11, 2009 Decided: July 9, 2009 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4846
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLEVELAND JORDAN, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:06-cr-00033-RBS-TEM-1)
Submitted: June 11, 2009 Decided: July 9, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Keith Loren Kimball, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Dana J. Boente, Acting United
States Attorney, William D. Muhr, Assistant United States
Attorney, Erin DeBoer, Third Year Law Student, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland Jordan, Jr., pled guilty to three counts of
possession of crack cocaine with intent to distribute, 21 U.S.C.
§ 841(a) (2006). He previously appealed his 108-month sentence
and we remanded his case for resentencing in light of
Kimbrough v. United States, 128 S. Ct. 558 (2007). On remand,
the district court applied the revised guidelines applicable to
crack offenses and reduced Jordan’s sentence to 100 months
imprisonment. Jordan appeals his sentence, arguing that his
sentence is both procedurally and substantively unreasonable.
We affirm.
On remand, Jordan requested a sentence at the low end
of the guideline range. The district court reviewed the
analysis it made at Jordan’s first sentencing of the 18 U.S.C.
§ 3553(a) (2006) factors as they applied in Jordan’s case. The
court noted that Jordan had a “poor criminal record,” which
included convictions for assault, driving with a suspended
license, and possession of marijuana and cocaine, as well as
many arrests on charges that were later dismissed. The court
noted that Jordan had received a deferred sentence for his prior
state drug conviction, that he had committed the current three
federal drug offenses within a short period of time, that he was
a recidivist, and that he had not been deterred by his previous
lenient treatment.
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The court stated that it did not consider the
disparity between crack and powder cocaine sentences to be a
significant factor, but was more concerned with Jordan’s
repeated offenses. The court observed that it still believed
the original 108-month sentence had been “generous,” by which it
explained that it meant the sentence was good for Jordan. The
court added that, because “the law ha[d] changed,” * and Jordan
was “making some progress” while in custody, it would impose a
reduced sentence of 100 months imprisonment. The court stated
that a sentence of 100 months would “be sufficient but not
greater than necessary to comply with the purposes of
[§ 3553(a)].” In a written order, the court stated that, having
considered Kimbrough, the amended guidelines, and the § 3553(a)
factors, “the court finds that a sentence of one hundred (100)
months is appropriate and reasonable in this case.”
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 128 S. Ct. 586,
597 (2007). This review requires us to consider both the
procedural and substantive reasonableness of the sentence.
Id.
at 597. In determining whether the sentence is procedurally
reasonable, we must first assess whether the district court
*
The amendments to the guidelines for crack offenses were
revised in 2007.
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properly calculated the defendant’s advisory guideline range.
Id. at 596-97. A sentence within a properly calculated
guideline range may be afforded an appellate presumption of
reasonableness. Rita v. United States,
127 S. Ct. 2456, 2459
(2007). We must then consider whether the district court
considered the § 3553(a) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence.
Gall, 128 S. Ct. at 597. Finally, we review
the substantive reasonableness of the sentence, “taking into
account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” United States v.
Pauley,
511 F.3d 468, 473 (4th Cir. 2007).
In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference § 3553(a) or
discuss every factor on the record, particularly when the court
imposes a sentence within a properly calculated guideline range.
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At
the same time, the district court “must make an individualized
assessment based on the facts presented.”
Gall, 128 S. Ct. at
597; United States v. Carter,
564 F.3d 325 (4th Cir. 2009). The
reasons articulated by the district court for a given sentence
need not be “couched in the precise language of § 3553(a),” so
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long as the “reasons can be matched to a factor appropriate for
consideration . . . and [are] clearly tied [to the defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007). Where the parties present nonfrivolous
reasons for imposing a different sentence from that set forth in
the advisory guideline range, the district court should address
the party’s arguments and explain why they were rejected.
Rita,
127 S. Ct. at 2468.
Jordan maintains that the district court “paid only
lip service” to the requirement in § 3553(a) that it “impose a
sentence sufficient, but not greater than necessary,” and
instead erred by imposing a sentence that the court believed to
be “‘appropriate and reasonable.’” We disagree.
The sentence was within a correctly calculated
guideline range, and may be afforded a presumption of
reasonableness on appeal. Rita, 127 S. Ct. at 2459. Jordan
argues that the district court must explain why a lower sentence
would have been insufficient, and failed to do so in his case.
In fact, the court explained, at the first sentencing hearing,
that a sentence below the guideline range would not be
sufficient because Jordan had not been deterred from continuing
his criminal behavior by prior lenient sentences. On remand,
Jordan requested only a sentence near the low end of the
guideline range. The court explained that it would not impose a
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sentence at the low end because the § 3553(a) factors had not
changed, but the court gave him a slightly lower sentence
because of the lowered guidelines for crack offenses and to
credit Jordan’s attempts to further his education and training
while in prison. Although the district court described the
sentence as “reasonable,” in its written order, the court
manifestly did not apply the appellate standard, which permits a
presumption that a sentence within a correctly calculated
guideline range is reasonable. The court instead followed the
procedure set out in Gall. Therefore, the sentence is not
procedurally unreasonable.
Jordan argues that his 100-month sentence is greater
than necessary because he had previously received only light
sentences--a total of fifteen weekends in jail--for his prior
criminal convictions. However, because the district court
considered the § 3553(a) factors on the record and responded to
Jordan’s argument for a lower sentence, we conclude that the
sentence was not substantively unreasonable.
We therefore affirm the sentence imposed by the
district court. 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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