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    United States v. Short, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit affirmed Christopher Short's 190-month sentence for possession with intent to distribute cocaine. The Court found that Short was properly classified as a career offender based on his prior North Carolina drug convictions. It also found that the district court adequately explained its reasons for imposing a within-guidelines sentence and recognized its authority to depart downward but determined a departure was not warranted. The Court concluded there were no meritorious issues for appeal.

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    United States v. Short, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit affirmed Christopher Short's 190-month sentence for possession with intent to distribute cocaine. The Court found that Short was properly classified as a career offender based on his prior North Carolina drug convictions. It also found that the district court adequately explained its reasons for imposing a within-guidelines sentence and recognized its authority to depart downward but determined a departure was not warranted. The Court concluded there were no meritorious issues for appeal.

    Original Description:

    Filed: 2010-06-29 Precedential Status: Non-Precedential Docket: 07-4881

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    The United States Court of Appeals for the Fourth Circuit affirmed Christopher Short's 190-month sentence for possession with intent to distribute cocaine. The Court found that Short was properly classified as a career offender based on his prior North Carolina drug convictions. It also found that the district court adequately explained its reasons for imposing a within-guidelines sentence and recognized its authority to depart downward but determined a departure was not warranted. The Court concluded there were no meritorious issues for appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    25 views6 pages

    United States v. Short, 4th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Christopher Short's 190-month sentence for possession with intent to distribute cocaine. The Court found that Short was properly classified as a career offender based on his prior North Carolina drug convictions. It also found that the district court adequately explained its reasons for imposing a within-guidelines sentence and recognized its authority to depart downward but determined a departure was not warranted. The Court concluded there were no meritorious issues for appeal.

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-4881

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    CHRISTOPHER TERRELL SHORT,
    Defendant - Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham.
    William L. Osteen,
    Senior District Judge. (1:07-cr-00084-WLO)

    Submitted:

    April 12, 2010

    Before TRAXLER,
    Judges.

    Chief

    Judge,

    Decided:

    and

    GREGORY

    and

    June 29, 2010

    AGEE,

    Circuit

    Affirmed by unpublished per curiam opinion.

    Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,


    North Carolina, for Appellant.
    Sandra Jane Hairston, Assistant
    United
    States
    Attorney,
    Greensboro,
    North
    Carolina,
    for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Pursuant

    to

    plea

    agreement,

    Christopher

    Terrell

    Short pled guilty to possession with intent to distribute 1000.2


    grams

    of

    cocaine

    841(a)(1)

    hydrochloride,

    (2006).

    The

    in

    district

    violation
    court

    of

    sentenced

    21

    U.S.C.

    him

    as

    career offender to a 190-month term of imprisonment.

    On appeal,

    Shorts

    Anders

    counsel

    has

    California,

    386

    meritorious

    issues

    filed

    U.S.

    738

    for

    brief

    (1967),

    appeal

    stating

    but

    to

    that

    there

    questioning

    reasonableness of Shorts sentence.


    supplemental brief.

    pursuant

    the

    are

    v.
    no

    procedural

    Short has filed a pro se

    Finding no reversible error, we affirm.

    Although neither Short nor his counsel challenges the


    adequacy

    of

    plea

    hearing

    on

    appeal,

    we

    have

    transcript of the plea hearing for plain error.

    reviewed

    the

    See United

    States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing
    standard).

    Our careful review of the record convinces us that

    the district court substantially complied with the mandates of


    Fed. R. Crim. P. 11 in accepting Shorts guilty plea and that
    any

    omission

    on

    the

    substantial rights.

    courts

    part

    did

    not

    affect

    Shorts

    Moreover, the district court ensured that

    Shorts guilty plea was knowing and voluntary and supported by a


    sufficient factual basis.

    See United States v. DeFusco, 949

    F.2d 114, 116, 119-20 (4th Cir. 1991).

    Short

    and

    his

    counsel

    question

    reasonableness of Shorts sentence.

    the

    procedural

    We review a sentence for

    reasonableness under an abuse-of-discretion standard.


    United States, 552 U.S. 38, 51 (2007).

    Gall v.

    This review requires

    appellate consideration of both the procedural and substantive


    reasonableness
    whether

    the

    of

    district

    sentence.
    court

    Id.

    This

    properly

    court

    calculated

    must
    the

    assess

    advisory

    guidelines range, considered the factors in 18 U.S.C. 3553(a)


    (2006), analyzed any arguments presented by the parties, and
    sufficiently explained the selected sentence.

    Id. at 49-50; see

    United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010); United
    States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).
    this

    court

    reviews

    the

    substantive

    Finally,

    reasonableness

    of

    the

    sentence, examining the totality of the circumstances to see


    whether the sentencing court abused its discretion in concluding
    that the sentence it chose satisfied the standards set forth in
    3553(a).

    United States v. Mendoza-Mendoza, 597 F.3d 212, 216

    (4th Cir. 2010).


    Counsel

    first

    asserts

    that

    Shorts

    prior

    North

    Carolina convictions should not count separately for purposes of


    designating Short as a career offender under U.S. Sentencing
    Guidelines

    Manual

    4B1.1

    (2006

    &

    Supp.

    2007).

    Because

    an

    intervening arrest separated Shorts two state court convictions


    for felony possession with intent to sell and deliver cocaine,
    3

    the district court properly counted the convictions as separate


    offenses.

    See USSG 4A1.2(a)(2).

    To the extent counsel also

    attempts to challenge the validity of Shorts January 31, 2001


    predicate

    offense,

    he

    may

    not

    do

    so

    in

    this

    appeal.

    See

    Custis v. United States, 511 U.S. 485, 493-97 (1994).


    Next,
    predicate

    Short

    offenses

    asserts

    on

    which

    in
    the

    his

    pro

    district

    se

    brief
    court

    that

    the

    relied

    to

    classify him as a career offender did not constitute felonies


    because he was sentenced to less than twelve months.

    Shorts

    claim is foreclosed by our decision in United States v. Harp,


    406 F.3d 242, 246 (4th Cir. 2005). 1

    Thus, Short is not entitled

    to relief on this claim.


    Counsel also suggests that the district court did not
    adequately state its reasons for imposing a 190-month sentence. 2
    Because Short argued in the district court for a sentence below
    the career offender guidelines range, we conclude that he has
    preserved this claim for appellate review.

    See Lynn, 592 F.3d

    Short relies on an unpublished decision in United


    States v. Lemons, 280 F. Appx 258, 258-59 (4th Cir.), cert.
    denied, 129 S. Ct. 238 (2008), as support for his claim of
    procedural error.
    However, Short mischaracterizes the holding
    in Lemons.
    2

    Based on the case cited in the issue statement in the


    formal brief, we liberally construe the claim as challenging the
    adequacy of the district courts reasons for the selected
    sentence.

    at 578, 581.

    We have reviewed the sentencing transcript and

    find no abuse of discretion.


    of

    review).

    Although

    See id. at 576 (stating standard

    the

    district

    courts

    explanation

    was

    brief, the court specifically considered the facts of Shorts


    case in imposing a within-guidelines sentence.
    U.S.

    at

    51

    (stating

    that

    district

    court

    See Gall, 552


    must

    make

    an

    individualized assessment based on the facts presented); Lynn,


    592 F.3d at 576 ([I]n explaining a sentencing decision, a court
    need not robotically tick through 3553(a)s every subsection,
    particularly
    (internal

    when

    imposing

    quotation

    marks

    and

    within-Guidelines
    citation

    omitted).

    sentence.)
    Thus,

    the

    district court committed no procedural error in sentencing Short


    as a career offender. 3
    Finally, turning to counsels claim that the career
    offender guidelines range overstated Shorts criminal history,
    we lack the authority to review a sentencing courts decision
    not to depart downward unless the court failed to understand
    United States v. Brewer, 520 F.3d 367,

    its authority to do so.


    371 (4th Cir. 2008).
    hearing,
    recognized

    we

    are
    its

    Based on our review of the sentencing

    convinced
    authority

    that
    to

    the

    depart

    district
    but

    court

    determined

    clearly
    that

    In light of our conclusion, we need not address counsels


    argument that, in the event Short was not a career offender, he
    should be placed in criminal history category II.

    downward departure was not warranted on the facts of Shorts


    case.

    Thus, this claim is not reviewable on appeal.

    Id.

    In accordance with Anders, we have reviewed the entire


    record

    for

    Accordingly,

    any
    we

    meritorious
    affirm

    the

    issues

    district

    and

    have

    courts

    found

    none.

    judgment.

    This

    court requires that counsel inform his client, in writing, of


    the right to petition the Supreme Court of the United States for
    further
    filed,

    review.
    but

    If

    counsel

    the

    client

    believes

    requests

    that

    such

    that
    a

    petition

    petition

    would

    be
    be

    frivolous, then counsel may move in this court for leave to


    withdraw from representation.

    Counsels motion must state that

    a copy thereof was served on the client.

    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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