United States v. Kevin Dickerson, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4906
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
G. Steven Agee, Circuit
Judge, sitting by designation; Samuel G. Wilson, District Judge.
(7:10-cr-00011-SGW-1)
Submitted:
May 31, 2011
Before KING and

Circuit Judge.
DIAZ,
Decided:
Circuit
Judges,
and
June 22, 2011
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
Larry W. Shelton,
Assistant Federal
Appellant. Timothy
Wolthuis, Assistant
for Appellee.
Federal Public Defender, Fay F. Spence,

Public Defender, Roanoke, Virginia, for
J. Heaphy, United States Attorney, Donald R.
United States Attorney, Roanoke, Virginia,
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Nevoyle Dickerson pled guilty to conspiracy to
distribute and possess with intent to distribute more than 1000
grams of heroin, in violation of 21 U.S.C. 846 (2006), and
attempt
to
violation
distribute
of
846.
more
The
than
court
100
sentenced
offender to 262 months imprisonment.

sentence
is
procedurally
grams
of
him
heroin,
as
in
career
Dickerson argues that his
unreasonable
because
the
court
(1)
presumed the reasonableness of a within-Guidelines sentence, (2)

failed
to
explain
why
it
rejected
his
argument
that
his
extraordinary cooperation warranted a greater than three-level

sentence reduction, and (3) failed to explain why it rejected
his arguments that the career offender Guidelines should not
apply.
Finding no error, we affirm.

In
sentence,
determining
the
consider
whether
we
calculated
the
U.S.C.
3553(a)
presented
by
advisory
the
the
Guidelines
(2006)
factors,
parties,
Gall
procedural
v.
and
reasonableness
district
range,
court
sufficiently
United
States,
any
the
18
arguments
explained
552
properly
considered
analyzed
of
U.S.
38,
the
selected
sentence.
51
(2007).
Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on

the record an individualized assessment based on the particular
facts of the case before it.
United States v. Carter, 564 F.3d

2
325, 330 (4th Cir. 2009) (internal quotation marks omitted).

The
explanation
must
be
sufficient
to
allow
for
meaningful
appellate review, id. at 328, such that the appellate court

Id. at 329
need not guess at the district courts rationale.

(internal quotation marks omitted).
Dickerson asserts that the district court improperly

applied
sentence.
presumption
of
reasonableness
in
fashioning
his
In Rita v. United States, 551 U.S. 338 (2007), the
Supreme Court held that an appellate court may presume that a

within-Guidelines sentence is reasonable.
Id. at 351.
We have
recognized, however, that Rita presumptions are forbidden in

sentencing courts . . . [because] they confer the force of law
upon the Guidelines.
United States v. Mendoza-Mendoza, 597
F.3d 212, 217 (4th Cir. 2010).

presumption
of
If the district court applies a
reasonableness
in
the
initial
sentencing
proceeding, the sentence is procedurally unreasonable.

216-17.
Id. at
On the other hand, we have explained that a district
court does not impermissibly apply a presumption in favor of a

Guidelines sentence if it use[s] the Guidelines to orient its
thinking and the process of sentencing begins with correctly
calculating the Guidelines sentencing range.
does
district
Guidelines
court
sentence
in
violate
the
case
Rita
or
simply
by
by
deeming
fitting or appropriate sentence for the case.

3
Id. at 217.
Nor
selecting
it
Id.
the
most
Our review
of the record leads us to conclude that the sentencing court

considered
its
impermissible
obligations
presumption
under
that
3553(a)
without
any
Guidelines
sentence
was
reasonable.
Next, Dickerson claims that the district court failed
to explain why it rejected his arguments for a below-Guidelines
sentence and that the career offender Guidelines should not be
applied to him.
Dickerson preserved these issues for appeal
[b]y drawing arguments from 3553 for a sentence different

United States v. Lynn, 592
than the one ultimately imposed.

F.3d 572, 578 (4th Cir. 2010).
Id. at 581, 583-84.
of discretion.
procedurally
Thus, our review is for an abuse
erred
and
thus
abused
If the district court
reverse unless the error is harmless.
its
The
whole,
courts
indicate
that
Dickersons arguments.
statements
it
discretion,
we
must
Id. at 581, 585.
at
considered
sentencing,
and
taken
rejected
as
each
a
of
The court determined that, based upon
the facts before it, Dickerson deserved a low-end Guidelines

sentence.
On the record, we conclude without difficulty that
the district court did not procedurally err.

The judgment of the district court is affirmed.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

May 31, 2011

Before KING and

June 22, 2011

Affirmed by unpublished per curiam opinion.

Federal Public Defender, Fay F. Spence,

Unpublished opinions are not binding precedent in this circuit.

offender to 262 months imprisonment.

Dickerson argues that his

presumed the reasonableness of a within-Guidelines sentence, (2)

extraordinary cooperation warranted a greater than three-level

Finding no error, we affirm.

Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).

appellate review, id. at 328, such that the appellate court

need not guess at the district courts rationale.

Dickerson asserts that the district court improperly

In Rita v. United States, 551 U.S. 338 (2007), the

Supreme Court held that an appellate court may presume that a

recognized, however, that Rita presumptions are forbidden in

United States v. Mendoza-Mendoza, 597

F.3d 212, 217 (4th Cir. 2010).

If the district court applies a

proceeding, the sentence is procedurally unreasonable.

On the other hand, we have explained that a district

court does not impermissibly apply a presumption in favor of a

fitting or appropriate sentence for the case.

of the record leads us to conclude that the sentencing court

Dickerson preserved these issues for appeal

[b]y drawing arguments from 3553 for a sentence different

than the one ultimately imposed.

Id. at 581, 583-84.

Thus, our review is for an abuse

If the district court

reverse unless the error is harmless.

Id. at 581, 585.

The court determined that, based upon

the facts before it, Dickerson deserved a low-end Guidelines

On the record, we conclude without difficulty that

the district court did not procedurally err.

contentions are adequately presented in the materials before the

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