Filed: Jun. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5090 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROOSEVELT DEWELL ROSS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (5:07-cr-01155-MBS-2) Submitted: February 10, 2010 Decided: June 2, 2010 Before MOTZ, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Cameron B. Littlejohn, Jr.,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5090 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROOSEVELT DEWELL ROSS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. Margaret B. Seymour, District Judge. (5:07-cr-01155-MBS-2) Submitted: February 10, 2010 Decided: June 2, 2010 Before MOTZ, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Cameron B. Littlejohn, Jr., C..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROOSEVELT DEWELL ROSS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:07-cr-01155-MBS-2)
Submitted: February 10, 2010 Decided: June 2, 2010
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cameron B. Littlejohn, Jr., Columbia, South Carolina, for
Appellant. Stanley Duane Ragsdale, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roosevelt Dewell Ross appeals his convictions and 360-
month sentence. Ross was convicted by a jury of possession with
intent to distribute a quantity of cocaine, in violation of 21
U.S.C. § 841(a)(1) (2006), possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006), and possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2006).
In the presentence report (PSR), the probation officer
determined that Ross qualified for enhanced sentencing as a
career offender, which mandated a base offense level of thirty-
four and a criminal history category of VI, pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 4B1.1(b) (2007). The
total sentencing range for all counts, pursuant to USSG §
4B1.1(c)(2)(B), (c)(3) was 360 months to life imprisonment. At
sentencing, counsel for Ross stated that there were no
objections to the PSR and argued for a sentence at the bottom of
the Guidelines range. The district court adopted the PSR and
sentenced Ross to a total of 360 months of imprisonment, six
years of supervised release, and a $300 special assessment.
Ross timely appealed.
In this court, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
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are no meritorious issues for appeal, but questioning whether
the district court erred in allowing the Government to present
evidence of a call from an unknown caller to a cell phone to
establish ownership of that phone, and whether Ross’s sentence
was properly determined. Ross was notified of his opportunity
to file a pro se supplemental brief but has not done so. The
Government declined to file a brief.
Counsel first questions whether the district court
erred in allowing the Government to present evidence of an
unknown caller to a cell phone in order to establish the
ownership of the cell phone. This court reviews the district
court’s rulings admitting evidence for abuse of discretion.
United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). An
abuse of discretion occurs only when “the trial court acted
arbitrarily or irrationally in admitting evidence.” United
States v. Williams,
445 F.3d 724, 732 (4th Cir. 2006) (internal
quotation marks and citation omitted). Evidentiary rulings are
also subject to review for harmless error under Federal Rule of
Criminal Procedure 52, and will be found harmless if the
reviewing court can conclude, “‘without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.’” United States v. Abu Ali,
528 F.3d 210,
231 (4th Cir. 2008) (quoting Kotteakos v. United States,
328
U.S. 750, 765 (1946)), cert. denied,
129 S. Ct. 1312 (2009).
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Our review of the record leads us to conclude that the court did
not err in admitting the evidence in question.
Counsel next questions whether the district court
properly determined Ross’s sentence. This court reviews a
sentence for reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). This
review requires appellate consideration of both the procedural
and substantive reasonableness of a sentence.
Id. After
determining whether the district court properly calculated the
defendant’s advisory Guidelines range, this court must then
consider whether the district court considered the 18 U.S.C.
§ 3553(a) (2006) factors, analyzed any arguments presented by
the parties, and sufficiently explained the selected sentence.
Id. “Regardless of whether the district court imposes an above,
below, or within-Guidelines sentence, it must place on the
record an ‘individualized assessment’ based on the particular
facts of the case before it.” United States v. Carter,
564 F.3d
325, 330 (4th Cir. 2009). A defendant preserves a claim of
procedural error “[b]y drawing arguments from § 3553 for a
sentence different than the one ultimately imposed.” United
States v. Lynn, __ F.3d __,
2010 WL 322176, at *4 (4th Cir.
2010).
In this case, counsel does not assert any specific
error, procedural or substantive, in the district court’s
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sentencing determination. Our review of the sentencing
transcript reveals that the district court failed to provide an
individualized explanation for its sentence, as required by
Carter. Ross, however, failed to preserve this error. At
sentencing, counsel implicitly argued “the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), and
requested that the district court impose a sentence at the
bottom of the Guidelines range, which was 360 months. The
district court imposed the requested sentence, and because
“[h]is attorney did not argue for a sentence different than the
within-Guidelines sentence [Ross] ultimately received,” Lynn,
2010 WL 322176, at *4, this court reviews only for plain error.
To demonstrate plain error, Ross “must show that an
error (1) was made, (2) is plain (i.e., clear and obvious), and
(3) affects substantial rights. Lynn, 2010 WL 322176, at *2.
As discussed above, the district court erred, and under Carter,
the error was plain. Ross cannot, however, demonstrate that the
error affected his substantial rights, because “[h]is attorney’s
arguments before the district court urged that court only to
impose a sentence [at the minimum of] the Guidelines range,
which it did.” Lynn,
2010 WL 322176, at *5.
Finally this court reviews the substantive
reasonableness of the sentence, “taking into account the
‘totality of the circumstances, including the extent of any
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variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting
Gall, 552 U.S. at
51). This court presumes that a sentence imposed within the
properly calculated guidelines range is reasonable. Rita v.
United States,
551 U.S. 338, 347 (2007); United States v. Smith,
566 F.3d 410, 414 (4th Cir. 2009). Ross has presented no
information to demonstrate that the totality of the
circumstances would support a sentence below the Guidelines
range, and our review of the record reveals none.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Ross’s convictions and sentence. This court
requires that counsel inform Ross, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Ross 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 Ross.
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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