United States v. Delano Marley

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 7, 2022
• Docket: 19-4279
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4279

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DELANO DESHON MARLEY,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00372-WO-1)

Submitted: March 24, 2022 Decided: April 7, 2022

Before QUATTLEBAUM and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Samuel B. Winthrop, WINTHROP & WINTHROP, Statesville, North Carolina, for Appellant. Kyle David Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

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PER CURIAM:

Delano Deshon Marley pled guilty, pursuant to a written plea agreement, to

possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The

district court imposed a sentence of 46 months’ imprisonment. On appeal, Marley’s

attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), questioning

whether the district court’s decision to impose an upward departure pursuant to U.S.

Sentencing Guidelines Manual § 4A1.3(a) (2018) was procedurally reasonable and

whether Marley’s 46-month sentence was substantively reasonable in light of the district

court’s explanation of the 18 U.S.C. § 3553(a) factors. * Although informed of his right to

file a supplemental pro se brief, Marley has not done so. The Government declined to file

a brief. We affirm the district court’s judgment.

We “review all sentences—whether inside, just outside, or significantly outside the

Guidelines range—under a deferential abuse-of-discretion standard.” United States v.

Torres-Reyes, 952 F.3d 147, 151 (4th Cir. 2020) (cleaned up). In conducting this review,

we must first ensure that the sentence is procedurally reasonable, “consider[ing] whether

the district court properly calculated the defendant’s advisory [G]uidelines range, gave the

parties an opportunity to argue for an appropriate sentence, considered the 18 U.S.C.

* Shortly after we entered the briefing order in this case, the Supreme Court held that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Our review of the record reveals no nonfrivolous Rehaif challenge to Marley’s conviction. See Greer v. United States, 141 S. Ct. 2090, 2097, 2100 (2021).

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§ 3553(a) factors, and sufficiently explained the selected sentence.” Id. If a sentence is

procedurally sound, we then review the substantive reasonableness of the sentence. Gall

v. United States, 552 U.S. 38, 51 (2007). “When considering the substantive

reasonableness of a prison term, we examine 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. Arbaugh, 951 F.3d 167, 176

(4th Cir. 2020) (cleaned up). Therefore, a sentence must be “sufficient, but not greater than

necessary,” to satisfy the goals of sentencing. 18 U.S.C. § 3553(a). “Where, as here, the

sentence is outside the advisory Guidelines range, we must consider whether the sentencing

court acted reasonably both with respect to its decision to impose such a sentence and with

respect to the extent of the divergence from the sentencing range.” United States v. Nance,

957 F.3d 204, 215 (4th Cir.) (internal quotation marks omitted), cert. denied, 141 S. Ct.

687 (2020).

Our review of the record convinces us that Marley’s sentence is both procedurally

and substantively reasonable. The district court properly calculated the applicable advisory

Guidelines range, considered the parties’ arguments, and adequately explained its reasons

for imposing a departure under USSG § 4A1.3(a). Nor did the district court abuse its

discretion in concluding that a 46-month sentence was warranted in this case.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s criminal

judgment. This court requires that counsel inform Marley, in writing, of the right to petition

the Supreme Court of the United States for further review. If Marley requests that a petition

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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 Marley.

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