Filed: Aug. 10, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5182 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DOMINIQUE TRACY SANDERS, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00007-LHT-1) Submitted: June 10, 2009 Decided: August 10, 2009 Before TRAXLER, Chief Judge, and MICHAEL and SHEDD, Circuit Judges. Affirmed in part, vacated in part, and remand
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5182 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DOMINIQUE TRACY SANDERS, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:08-cr-00007-LHT-1) Submitted: June 10, 2009 Decided: August 10, 2009 Before TRAXLER, Chief Judge, and MICHAEL and SHEDD, Circuit Judges. Affirmed in part, vacated in part, and remande..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5182
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE TRACY SANDERS,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00007-LHT-1)
Submitted: June 10, 2009 Decided: August 10, 2009
Before TRAXLER, Chief Judge, and MICHAEL and SHEDD, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Raquel K. Wilson,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Tracy Sanders pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and
one count of possession and use of a firearm during the
commission of a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2006). Sanders was sentenced to
sixty-three months for his narcotics conviction, and sixty
months for his weapons conviction, the latter term to run
consecutive to the former term for a total of 123 months.
Counsel for Sanders has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), explaining that she
found no meritorious grounds for appeal because of the appellate
waiver contained in Sanders’ plea agreement, but nonetheless
challenging the reasonableness of Sanders’ sentence on the
narcotics conviction. The Government declined to file a
responding brief, and Sanders has not filed a pro se
supplemental brief. We affirm Sanders’ convictions and his
sixty-month sentence on the weapons conviction, but vacate his
sixty-three month sentence on the narcotics conviction and
remand for re-sentencing on that conviction.
In accordance with Anders, we have reviewed the
record in this case, searching for meritorious issues for
review. Prior to accepting a guilty plea, a trial court,
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through colloquy with the defendant, must inform the defendant
of, and determine that the defendant understands the nature of,
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
rights he is relinquishing by pleading guilty. Fed. R. Crim. P.
11(b). “In reviewing the adequacy of compliance with Rule 11,
this Court should accord deference to the trial court’s decision
as to how best to conduct the mandated colloquy with the
defendant.” United States v. DeFusco, 949 F.2d 114, 116
(4th Cir. 1991).
A review of the record reveals that the magistrate
judge fully complied with the Rule 11 requirements, ensuring
that Sanders’ plea was knowing and voluntary, that he understood
the rights he was giving up by pleading guilty and the sentence
he faced, and that he committed the offenses to which he was
pleading guilty. Because we find that no error occurred during
the Rule 11 hearing, we affirm Sanders’ convictions.
We nonetheless conclude that Sanders’ sentence on his
narcotics conviction is unreasonable and should be vacated. *
*
Because Sanders was sentenced to the statutory minimum on
his weapons conviction, we affirm the district court’s sentence
on this conviction. See United States v. Farrior, 535 F.3d 210,
224 (4th Cir. 2008) ("A statutorily required sentence . . . is
per se reasonable.") (emphasis in original), cert. denied, 129
S. Ct. 743 (2008).
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After United States v. Booker, 543 U.S. 220 (2005), this court
reviews a sentence on appeal for reasonableness, using an abuse
of discretion standard of review. Gall v. United States, 128 S.
Ct. 586, 597 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error. United States v. Evans,
526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence-including an explanation for any deviation from the
Guidelines range.”
Gall, 128 S. Ct. at 597. If, and only if,
this court finds the sentence procedurally reasonable can the
court consider the substantive reasonableness of the sentence
imposed. United States v. Carter,
564 F.3d 325, 328 (4th Cir.
2009).
We find that the district court procedurally erred
when it sentenced Sanders on the narcotics conviction without
stating in open court the particular reasons supporting the
sentence. Under our recent decision in Carter, “[w]here the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence than that set forth in the
advisory Guidelines, a district judge should address the party’s
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arguments and explain why he has rejected those arguments.”
Carter, 564 F.3d at 328. Even when the district court imposes a
within Guidelines sentence, Carter makes clear that the district
court must place on the record an “individualized rationale”
explaining its sentence.
Id. at 328-30. Here, the district
court failed to provide such an explanation. We remand for that
purpose.
Having reviewed the record in this case and finding no
other meritorious issues for review, we affirm Sanders’
convictions, as well as his sentence on the weapons conviction,
vacate his sentence on the narcotics conviction, and remand to
the district court for re-sentencing on that conviction in
accordance with this opinion. This court requires that counsel
inform Sanders in writing of his right to petition the Supreme
Court of the United States for further review. If Sanders
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may motion this
court for leave to withdraw from representation. Counsel's
motion must state that a copy thereof was served on Sanders. 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 IN PART,
VACATED IN PART,
AND REMANDED
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