Filed: Apr. 22, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5120 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WADDELL G. GIBBS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:07-cr-00233-REP-1) Submitted: April 8, 2011 Decided: April 22, 2011 Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Dana
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5120 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WADDELL G. GIBBS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:07-cr-00233-REP-1) Submitted: April 8, 2011 Decided: April 22, 2011 Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Dana ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5120
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WADDELL G. GIBBS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00233-REP-1)
Submitted: April 8, 2011 Decided: April 22, 2011
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Jessica
Aber Brumberg, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Waddell G. Gibbs appeals his sentence after pleading
guilty to possession with intent to distribute five grams or
more of cocaine base, possession of marijuana, and possession of
a firearm in furtherance of a drug trafficking crime. On
appeal, Gibbs contends that the district court erred in finding
drug quantity under U.S. Sentencing Guidelines Manual § 2D1.1
(2007), and his sentence is unreasonable in light of the factors
under 18 U.S.C. § 3553(a) (2006). We affirm.
We review a sentence imposed by the district court
under a deferential abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
the guideline range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. On appeal, we presume that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007).
In sentencing, the district court should first
calculate the guideline range and give the parties an
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opportunity to argue for whatever sentence they deem
appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The district court should then consider the
relevant § 3553(a) factors to determine whether they support the
sentence requested by either party.
Id. When rendering a
sentence, the district court must make and place on the record
an individualized assessment based on the particular facts of
the case before the court.
Carter, 564 F.3d at 328, 330. “Such
individualized treatment is necessary to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue.”
Id. at 328
(internal quotation marks and citations omitted).
In explaining the chosen sentence, the “sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority,”
but when the judge decides simply to apply the guidelines,
“doing so will not necessarily require lengthy explanation.”
Rita v. United States, 551 U.S. 338, 356 (2007). This is
“because guidelines sentences themselves are in many ways
tailored to the individual and reflect approximately two decades
of close attention to federal sentencing policy.” United States
v. Hernandez,
603 F.3d 267, 271 (4th Cir. 2010) (internal
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quotation marks and citations omitted). While a district court
must consider the statutory factors and explain its sentence, it
need not explicitly reference § 3553(a) or discuss every factor
on the record, particularly when the district court imposes a
sentence within a properly calculated guideline range. United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Gibbs first contends that the district court erred in
finding drug quantity under USSG § 2D1.1. The probation officer
determined he was accountable for 40.72 grams of cocaine base
and 1.73 grams of Alprazolam which converted to 464.21 kilograms
of marijuana and resulted in a base offense level of twenty-
eight under USSG § 2D1.1(c)(6). After a three-level reduction
for acceptance of responsibility, and with his criminal history
category V, Gibbs’s advisory guideline range was 100 to 125
months on count one, twelve months on count two, and the
consecutive sixty-month term on count three.
The drug quantity was based on seizures from Gibbs of
5.72 grams of cocaine base, 1.1 grams of marijuana, 1.73 grams
of Alprazolam, and $1275 in cash. Police also found a revolver,
ammunition, a digital scale, and numerous plastic baggies with
the ends torn off. Moreover, when police arrived to execute the
search warrant, they found Gibbs flushing drugs down the toilet;
he admitted flushing down marijuana; and drugs had been seized
from Gibbs just a few months earlier. The probation officer
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determined that an ounce of cocaine base was worth approximately
$1000, and that the cash seized from Gibbs should be converted
to 35 grams of cocaine base. Gibbs objected to conversion of
all the cash to cocaine base, contending that $983 of the $1275
was the remaining proceeds of his lottery winnings. He also
moved for a variance sentence below his guideline range.
Gibbs presented evidence that a check for $2700 in
lottery winnings had been cashed by a friend approximately two
weeks previously, and his attorney proffered that he paid the
friend $100 to claim the winnings and cash the check for him to
avoid paying fines. He did not present any evidence of how much
money he spent in support of his claim that $983 was remaining
lottery proceeds. The Government noted he did not claim that
the cash was lottery proceeds at the time of his arrest and
contended that even if he won the lottery, it was unreasonable
to believe based on information in the presentence report that
he would still have that money on the date of his arrest.
The district court found that the undisputed contents
of the presentence report established that he spent $3400 on
alcohol, marijuana, and cough medicine and made $500 from his
hobby of installing car stereo equipment during this period.
The court found the Government had proved he spent the lottery
winnings on his drug and alcohol habits, and the $1275 was drug
proceeds. The court overruled Gibbs’s objection. After hearing
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evidence and argument on Gibbs’s motion for a downward variance,
the court denied the motion and sentenced him at the low end of
his guideline range to 100 months in prison on count one, twelve
months on count two, and a consecutive sixty-month term on count
three. The court recommended that Gibbs participate in the 500-
hour drug treatment program while in prison, and in substance
abuse and mental health treatment while on supervised release.
Based on our review of the record, we conclude that
the district court did not clearly err in finding drug quantity.
See USSG § 2D1.1 cmt. n.12; United States v. Kiulin, 360 F.3d
456, 461 (4th Cir. 2004); United States v. Hicks,
948 F.2d 877,
881, 883 (4th Cir. 1991). We further conclude that Gibbs has
failed to rebut the presumption that his sentence is reasonable.
We therefore affirm the district court’s judgment. 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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