Filed: Jun. 30, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4967 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LESLIE OWEN FEREBEE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:10-cr-00004-BO-1) Submitted: June 23, 2011 Decided: June 30, 2011 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas P. Mc
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4967 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LESLIE OWEN FEREBEE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, District Judge. (2:10-cr-00004-BO-1) Submitted: June 23, 2011 Decided: June 30, 2011 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Thomas P. McN..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4967
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESLIE OWEN FEREBEE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:10-cr-00004-BO-1)
Submitted: June 23, 2011 Decided: June 30, 2011
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leslie Owen Ferebee pled guilty without a plea
agreement to: conspiracy to distribute fifty grams or more of
cocaine base and 500 grams or more of cocaine, 21 U.S.C. § 846
(2006) (Count One); distribution of fifty grams or more of
cocaine base, 21 U.S.C. § 841(a)(1) (2006) (Count Two); four
counts of distribution of a quantity of crack, 21 U.S.C.
§ 841(a)(1) (Counts Three-Six); and distribution of a quantity
of cocaine base and a quantity of cocaine, 21 U.S.C. § 841(a)(1)
(Count Seven). He was sentenced to 280 months on each count.
The sentences run concurrently. Ferebee now appeals, raising
two issues related to his sentence. We vacate and remand for
resentencing.
I
According to Ferebee’s presentence investigation
report (PSR), his base offense level was 34. See U.S.
Sentencing Guidelines Manual § 2D1.1(c)(2) & n.10(D) (2009).
Two levels were added based on possession of a firearm. See
USSG § 2D1.1(b)(1). His adjusted offense level was 36.
However, because Ferebee was a career offender, see USSG
§ 4B1.1, and the statutory maximum to which he was subject is
life in prison, see 21 U.S.C. § 841(b)(1)(A), his offense level
was 37. See USSG § 4B1.1. Three levels were subtracted for
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acceptance of responsibility. See USSG § 3E1.1. Ferebee’s
total offense level therefore was 34, his criminal history
category was VI, and his advisory Guidelines range was 262-327
months.
At sentencing, defense counsel requested a sentence of
240 months because Ferebee had “undergone a fairly significant
change during the time he ha[d] been in custody.” The
Government argued for a sentence in the middle of Ferebee’s
Guidelines range.
Without affording Ferebee the opportunity to allocute,
the court sentenced him to 280 months on each count, to run
concurrently. The court offered no rationale for the chosen
sentence.
II
Ferebee contends that his sentence is procedurally
unreasonable because the district court did not sufficiently
explain the selected sentence. Because Ferebee argued for a
sentence different than the one imposed, he preserved his claim,
and our review is for abuse of discretion. See United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010). If we determine that
the court abused its discretion, we will reverse unless the
error was harmless. See
id. at 576.
3
A district court commits procedural sentencing error
by “failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007). In evaluating the
district court’s explanation for the sentence imposed, we have
held that, although the district court must consider the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2011) statutory factors
and explain the sentence, it need not explicitly reference
§ 3553(a) or discuss every factor on the record. United
States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006). However,
the district court “must make an individualized assessment based
on the facts presented,” and apply the “relevant § 3553(a)
factors to the specific circumstances of the case before it.”
United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks and emphasis omitted). The court must
also “state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” us that it
has “considered the parties’ arguments and has a reasoned basis
for exercising [its] own legal decisionmaking authority.”
Id.
(internal quotation marks and citation omitted). The reasons
articulated by the district court need not be “couched in the
precise language of § 3553(a),” as long as the reasons “can be
matched to a factor appropriate for consideration under that
statute and [are] clearly tied to [the defendant’s] particular
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situation.” United States v. Moulden, 478 F.3d 652, 658 (4th
Cir. 2007).
Here, the district court erred by failing to offer any
explanation of the selected sentence. Under this circumstance,
appellate review is impossible, and the error is not harmless.
Accordingly, we must vacate and remand for resentencing.
III
Ferebee also contends that the district court
committed reversible error when it failed to afford him the
opportunity to allocute prior to sentencing. See Fed. R. Crim.
P. 32(i)(4)(A)(ii); see also Green v. United States, 365 U.S.
301, 305 (1961). Because Ferebee did not object at sentencing
to the denial of allocution, our review is for plain error. See
United States v. Olano,
507 U.S. 725, 731-32 (1993). To
establish plain error, a defendant must show that (1) an error
occurred; (2) the error was plain; and (3) the error affected
his substantial rights.
Id. at 732. Even if these conditions
are satisfied, we will exercise our discretion to notice the
error only if the error “seriously affected the fairness,
integrity or public reputation of judicial proceedings.”
Id.
(internal quotation marks omitted).
The denial of allocution does not per se affect a
defendant’s substantial rights. United States v. Lewis, 10 F.3d
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1086, 1092 (4th Cir. 1993). To demonstrate that such denial
affected his substantial rights, the defendant must establish
that, had he been permitted allocution, his sentence might have
been lower. See United States v. Cole,
27 F.3d 996, 999 (4th
Cir. 1994).
We need not decide whether the denial of the
opportunity to allocute affected Ferebee’s substantial rights,
because, as previously discussed, resentencing is necessary
based on the district court’s failure to explain the chosen
sentence. At resentencing, however, the district court should
provide Ferebee the opportunity to address the court prior to
imposition of sentence.
IV
We therefore vacate the sentence and remand for
resentencing. On remand, the district court should permit
Ferebee to allocute in accordance with Rule 32(i)(4)(a)(ii) and
should set forth its reasons for the selected sentence. 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.
VACATED AND REMANDED
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