United States v. Lethen Pollack, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 10, 2022
• Docket: 21-4221
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4221

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LETHEN DELSTONIO POLLACK, JR., a/k/a Mooky,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00164-D-1)

Submitted: January 18, 2022 Decided: February 10, 2022

Before GREGORY, Chief Judge, and MOTZ and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Joshua L. Rogers, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lethen Delstonio Pollack, Jr., pleaded guilty to distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced Pollack to 57 months’

imprisonment and three years of supervised release and imposed discretionary conditions

of supervised release. Pollack appealed, and we affirmed Pollack’s conviction but vacated

Pollack’s sentence and remanded for resentencing pursuant to United States v. Singletary,

984 F.3d 341, 345-46 (4th Cir. 2021) (explaining that, in order to sentence a defendant to

a discretionary condition of supervised release, the district court must include that

condition in its oral pronouncement of sentence), and United States v. Rogers, 961 F.3d

291, 297 (4th Cir. 2020) (same). United States v. Pollack, 836 F. App’x 160, 162 (4th Cir.

2021). On remand, the district court conducted a resentencing hearing and imposed the

same 57-month sentence of imprisonment and three-year term of supervised release. The

court also orally pronounced each mandatory and discretionary condition of supervised

release to which Pollack would be subjected.

Pollack now appeals from the amended criminal judgment entered on remand.

Pollack’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious grounds for appeal but questioning whether Pollack’s

sentence is reasonable. For the reasons stated below, we affirm.

“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an

abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,

or significantly outside the [Sentencing] Guidelines range.’” United States v. Nance, 957

F.3d 204, 212 (4th Cir.) (first alteration in original) (quoting Gall v. United States, 552

2 U.S. 38, 41 (2007)), cert. denied, 141 S. Ct. 687 (2020). In performing that review, we are

obliged to first “evaluate procedural reasonableness, determining whether the district court

committed any procedural error, such as improperly calculating the Guidelines range,

failing to consider the § 3553(a) factors, or failing to adequately explain the chosen

sentence.” Id. (citing Gall, 552 U.S. at 51).

If “the district court has not committed procedural error,” we then assess the

substantive reasonableness of the sentence. Id. Our substantive reasonableness review

“takes into account the totality of the circumstances to determine whether the sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards

set forth in § 3553(a).” Id. (internal quotation marks omitted). “Any sentence that is within

or below a properly calculated Guidelines range is presumptively [substantively]

reasonable. Such a presumption can only be rebutted by showing that the sentence is

unreasonable when measured against the . . . § 3553(a) factors.” United States v. Louthian,

756 F.3d 295, 306 (4th Cir. 2014) (citation omitted).

As to the procedural reasonableness of Pollack’s sentence of imprisonment, we

conclude that the district court did not err. The court correctly calculated the Guidelines

range, adequately considered the § 3553(a) factors, provided a meaningful explanation for

the sentence that it chose, and sufficiently addressed defense counsel’s arguments for a

lesser sentence. See Gall, 552 U.S. at 49-51. We are thus satisfied that Pollack’s prison

sentence is procedurally reasonable.

We also conclude that nothing in the record rebuts the presumption of substantive

reasonableness afforded to Pollack’s 57-month sentence. The district court reasonably

3 emphasized that Pollack’s relevant conduct included participating in the gang-beating of

another person over a small drug debt. The court also properly stressed that Pollack had

not accepted responsibility for his actions and that he had attempted to obstruct justice by

providing materially false information to the court. Additionally, the court was

appropriately concerned that Pollack had elected to join a gang and sell drugs despite

having a supportive family and the physical ability and intelligence to perform legitimate

work. We therefore conclude that Pollack’s sentence of imprisonment is substantively

reasonable. See United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (recognizing

that “district courts have extremely broad discretion when determining the weight to be

given each of the § 3553(a) factors”).

Finally, the district court properly imposed a three-year term of supervised release.

See 21 U.S.C. § 841(b)(1)(C). And the court complied with our decisions in Singletary

and Rogers by orally pronouncing all of the discretionary conditions of supervised release

during the resentencing hearing. Moreover, the court did not otherwise plainly err in

imposing those discretionary conditions. See United States v. McMiller, 954 F.3d 670, 675

(4th Cir. 2020) (reviewing imposition of supervised release conditions for plain error where

defendant did not lodge objections to conditions in district court). Indeed, the court

adequately explained its reasons for imposing some of the discretionary conditions of

supervised release. See United States v. Boyd, 5 F.4th 550, 557 (4th Cir. 2021). Insofar as

the court did not provide individualized explanations for imposing each of the 13

“standard” conditions of supervised release recommended by the Guidelines in every case,

see U.S. Sentencing Guidelines Manual § 5D1.3(c), p.s. (2018), we observe that Pollack

4 did not object to any of those conditions. Furthermore, we are satisfied that the reasons for

imposing those 13 conditions are “self-evident” in this case and that the court’s sentencing

explanation as a whole supports the imposition of those conditions. Boyd, 5 F.4th at 559;

see id. (“[W]e do not expect district courts to robotically tick through individual

explanations for every condition imposed.” (internal quotation marks omitted)).

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

found no meritorious grounds for appeal. We thus affirm the amended criminal judgment.

This court requires that counsel inform Pollack, in writing, of the right to petition the

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

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 Pollack.

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