Filed: May 22, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4596 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANTHONY EARL RIVERS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-cr-00388-FL-1) Submitted: May 19, 2014 Decided: May 22, 2014 Before WILKINSON, MOTZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jennifer Haynes Rose, LAW
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4596 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ANTHONY EARL RIVERS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:12-cr-00388-FL-1) Submitted: May 19, 2014 Decided: May 22, 2014 Before WILKINSON, MOTZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Jennifer Haynes Rose, LAW O..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4596
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY EARL RIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:12-cr-00388-FL-1)
Submitted: May 19, 2014 Decided: May 22, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary,
North Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Anthony Earl Rivers appeals from his forty-six-month
sentence imposed pursuant to his guilty plea to possession of a
firearm by a convicted felon. On appeal, Rivers contends that
the district court erred by (1) failing to order the Government
to file a motion for an additional one-point offense level
reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1(b) (2012); (2) failing to adequately
explain Rivers’ sentence; and (3) imposing an unreasonably harsh
sentence. We affirm.
I.
Rivers first argues that the district court erred in
failing to award him an extra one-point reduction for acceptance
of responsibility. In United States v. Divens, 650 F.3d 343
(4th Cir. 2011), we explained that the Government may not refuse
to make a § 3E1.1(b) motion for reasons other than a defendant’s
failure to fulfill the prerequisites listed therein, which
include: (1) qualifying for application of § 3E1.1(a), (2) an
offense level of sixteen or greater prior to the application of
§ 3E1.1(a), and (3) assisting the Government in the
investigation or prosecution of the defendant’s offense by
timely notifying authorities of his intention to plead guilty,
thereby allowing the Government to avoid trial preparation and
permitting the efficient allocation of Government and court
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resources. Id. at 345-47 (§ 3E1.1(b) does not allow the
Government to refuse to move for the additional reduction solely
because the defendant has declined to perform some other action
beneficial to the Government); see also United States v. Lee,
653 F.3d 170, 173-75 (2d Cir. 2011) (holding that Government
abuses its discretion when it refuses to make a § 3E1.1(b)
motion for reasons that are not closely tied to its avoidance of
preparing for trial). Thus, if the Government’s refusal to make
a motion for the third § 3E1.1 downward departure point is based
on something other than the fact that the defendant’s failure to
timely accept responsibility required the Government to prepare
for trial, the district court has the authority to order the
Government to file a motion for reduction. See
Divens, 650 F.3d
at 350.
Here, the Government averred that it chose not to file
the motion because it had fully prepared for trial. While
Rivers disputes how complete the Government’s trial preparation
was prior to his plea, he does not dispute that the Government
chose not to file a § 3E1.1(b) motion because it believed that
Rivers’ delay in pleading guilty caused it to expend time and
resources in developing readiness for trial. In fact, the
Government informed Rivers when its trial preparation was about
to begin and warned Rivers that he needed to plead guilty prior
to that time. Rivers, however, delayed his guilty plea for
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nearly two more months until a week prior to trial. We conclude
that, because the Government’s refusal to make the disputed
motion was based on a permissible reason, the court lacked the
authority to order the Government to file the motion. See USSG
§ 3E1.1 cmt. n. 6 (“[T]he Government is in the best position to
determine whether the defendant has assisted authorities in a
manner that avoids preparing for trial ....”); see also Divens,
650 F.3d at 346 (“[T]he Government retains discretion to
determine whether the defendant's assistance has relieved it of
preparing for trial.”). Accordingly, Rivers’ claim is without
merit.
II.
Rivers next contends that the district court did not
provide sufficient reasoning for the above-Guidelines sentence. 1
We must ensure that the district court adequately explained the
sentence imposed. Gall v. United States, 552 U.S. 38, 51
(2007). The district court is not required to “robotically tick
through [18 U.S.C.] § 3553(a) [2012]’s every subsection.”
United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006).
However, the district court “must place on the record an
‘individualized assessment’ based on the particular facts of the
1
Rivers’ Guidelines range was thirty to thirty-seven months
in prison.
4
case before it. This individualized assessment need not be
elaborate or lengthy, but it must provide a rationale tailored
to the particular case at hand and adequate to permit
‘meaningful appellate review.’” United States v. Carter, 564
F.3d 325, 330 (4th Cir. 2009) (quoting
Gall, 552 U.S. at 50)
(internal citation and footnote omitted)). Because Rivers did
not argue for a specific sentence, we review for reasonableness
under a plain error standard. United States v. Lynn,
592 F.3d
572, 576-77 (4th Cir. 2010).
Our review of the sentencing hearing transcript
reveals that the district court provided a detailed,
individualized explanation to support its sentence. Contrary to
Rivers’ contentions, the court addressed the specific sentencing
factors in Rivers’ case, including the details of his offense,
his criminal background, and the need for treatment. Moreover,
the court specifically tied the facts of Rivers’ case to the
purposes of sentencing outlined in § 3553. As such, there was
no procedural error in the court’s explanation of sentence.
III.
Rivers asserts that the district court’s imposition of
an upward variance rendered his sentence substantively
unreasonable because the court failed to account for his
difficult upbringing and failed to provide a sufficient
justification, rendering Rivers’ sentence greater than necessary
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to fulfill the purposes of sentencing. When the district court
imposes a variance sentence, we “consider whether the sentencing
court acted reasonably both with respect to its decision to
impose such a sentence and with respect to the extent of the
divergence from the sentencing range.” United States v.
Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). A
greater variance requires more substantial justification.
United States v. Diosdado-Star,
630 F.3d 359, 366 (4th Cir.
2011). We will affirm if “the § 3553(a) factors, on the whole,
justified the sentence” imposed.
Id. at 367 (internal quotation
marks omitted).
We find that Rivers’ argument is without merit. The
district court acknowledged Rivers’ background and childhood and
balanced that against the seriousness of his offense and his
danger to society. In subsequently imposing a variance sentence
based upon the totality of the circumstances, the court
emphasized the need to not trivialize Rivers’ conduct and to
deter future criminal behavior. In so doing, the court noted
Rivers’ failure to fully accept responsibility, his gang
membership, 2 the danger inherent in his criminal offense, the
2
In his reply brief, Rivers denies that he is a member of a
gang. However, the district court overruled his objection
below, and Rivers provides no evidence undermining the district
court’s factual finding that Rivers belonged to a gang.
6
obstruction involved in his offense, and the need for treatment.
These considerations speak directly to several § 3553(a)
factors.
While Rivers avers that his sentence was greater than
necessary to comply with the statutory factors, we do not review
a sentence to determine if it is greater than necessary;
instead, we review a sentence for reasonableness and an abuse of
discretion, and more than one sentence can be substantively
reasonable. United States v. Martin, 520 F.3d 87, 92 (1st Cir.
2008) (citation omitted) (“[T]here is not a single reasonable
sentence but, rather, a range of reasonable sentences.
Consequently, reversal will result if-and only if-the sentencing
court's ultimate determination falls outside the expansive
boundaries of that universe.”). Given the district court’s
consideration of the parties’ arguments and the § 3553(a)
sentencing factors, and its articulation of appropriate reasons
warranting an upward variance, we defer to the district court’s
determination as to the extent of the variance and find Rivers’
sentence to be substantively reasonable. United States v.
Hargrove,
701 F.3d 156, 163-64 (4th Cir. 2012) (affirming
variance from zero-to-six-month Guidelines range to sixty-month
sentence), cert. denied,
133 S. Ct. 2403 (2013);
Diosdado-Star,
630 F.3d at 366-67 (affirming variance sentence six years
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greater than Guidelines range because sentence was based on the
district court’s examination of relevant § 3553(a) factors).
Based on the foregoing, we affirm Rivers’ 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.
AFFIRMED
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