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United States v. Timothy Cleveland, 15-4481 (2016)

Court: Court of Appeals for the Fourth Circuit Number: 15-4481 Visitors: 23
Filed: Feb. 25, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4481 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY ARAZIL CLEVELAND, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior District Judge. (7:14-cr-00784-HMH-1) Submitted: February 23, 2016 Decided: February 25, 2016 Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4481


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY ARAZIL CLEVELAND,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:14-cr-00784-HMH-1)


Submitted:   February 23, 2016            Decided:   February 25, 2016


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Benjamin   T.   Stepp,   Assistant    Federal   Public   Defender,
Greenville, South Carolina, for      Appellant.    Elizabeth Jean
Howard, Assistant United States      Attorney, Greenville, South
Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Timothy Arazil Cleveland pled guilty to bank robbery, in

violation of 18 U.S.C. § 2113 (2012).                             He received a within-

Guidelines     sentence         of    57     months’      imprisonment.             On    appeal,

Cleveland’s       counsel       has    filed      a     brief     pursuant    to     Anders      v.

California, 
386 U.S. 738
(1967), certifying that there are no

meritorious       grounds       for     appeal         but   questioning          whether      the

district court erred in calculating Cleveland’s criminal history

points.       Cleveland has filed a pro se brief raising the same

issue.     The Government declined to file a response.

      We review Cleveland’s sentence for reasonableness “under a

deferential       abuse-of-discretion                  standard.”          Gall     v.     United

States,    
552 U.S. 38
,       41,    51       (2007).       This     review       entails

appellate consideration of both the procedural and substantive

reasonableness of the sentence.                         
Id. at 51.
          In determining

procedural       reasonableness,             we   consider        whether     the        district

court    properly     calculated            the   defendant’s        advisory       Guidelines

range,     gave     the     parties         an        opportunity     to     argue       for    an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)

factors,      selected      a    sentence         based      on    facts     that     were      not

clearly     erroneous,          and    sufficiently             explained     the        selected

sentence.      
Id. at 49-51.
      If the sentence is free of “significant procedural error,”

we   review    it    for    substantive               reasonableness,        “tak[ing]         into

                                                  2
account the totality of the circumstances.”                     
Id. at 51.
       Any

sentence within or below a properly calculated Guidelines range

is    presumptively       substantively        reasonable.      United   States       v.

Louthian, 
756 F.3d 295
, 306 (4th Cir.), cert. denied, 
135 S. Ct. 421
(2014); United States v. Susi, 
674 F.3d 278
, 289-90 (4th

Cir.    2012).     Such     a   presumption       can   only   be   rebutted     by    a

showing that the sentence is unreasonable when measured against

the § 3553(a) factors.          
Louthian, 756 F.3d at 306
.

       Because Cleveland did not object below to the calculation

of his criminal history points, our review is limited to plain

error.      United States v. Hamilton, 
701 F.3d 404
, 410 (4th Cir.

2012).      To establish plain error, a defendant must show that

“(1) there is an error, (2) the error is plain, and (3) the

error affects substantial rights.”                 Henderson v. United States,

133    S.   Ct.   1121,    1126   (2013)       (internal     quotation   marks    and

alteration omitted).            We conclude that the district court did

not err in assessing the disputed criminal history points.                        See

U.S. Sentencing Guidelines Manual § 4A1.1(e) (2014) (directing

that one point be added for each prior sentence resulting from a

conviction of a crime of violence that did not receive points

under USSG § 4A1.1(a) because such sentence was treated as a

single sentence).

       In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                            We

                                           3
therefore affirm the amended judgment.           This court requires that

counsel inform Cleveland, in writing, of the right to petition

the Supreme Court of the United States for further review.                    If

Cleveland    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 Cleveland.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials    before    this   court   and    argument   would    not   aid    the

decisional process.


                                                                       AFFIRMED




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Source:  CourtListener

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