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No. 10-4260
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-00565-HFF-1)
Argued:
Decided:
Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
PER CURIAM:
Orenthal James Dendy appeals his sentence for possession
with intent to distribute and distribution of crack cocaine and
for use of a firearm in furtherance of a drug trafficking crime.
He argues that the district court inadequately explained its
reasons for imposing a sentence within the guidelines range and
rejecting his arguments for a lesser sentence.
He also contends
that
his
sentencing
hearing
was
tainted
by
statement
the
Finding
no error, we affirm.
I.
On several occasions in 2008, Dendy sold crack cocaine to a
confidential
informant
working
for
the
Simpsonville,
South
The
search
revealed
crack
cocaine,
drug
possessing
cocaine
base
841(a)(1)
and
with
(crack
intent
to
cocaine),
841(b)(1)(C).
in
distribute
violation
Count
Five
and
of
distributing
21
charged
U.S.C.
Dendy
with
(PSR),
which
calculated
Dendys
sentence
under
the
characteristics
included
specific
relationships;
details
about
in
some
detail.
information
physical
his
about
Dendys
condition;
mental
illness
diagnosis,
mental
description
health,
family
including
medications,
and
sentencing,
the
district
court
recited
the
After
verifying
contents
of
the
PSR,
the
findings
of
the
PSR
as
that
neither
district
a
basis
party
court
to
objected
adopted
evaluate
the
the
to
the
factual
sentencing
Because
the
mandatory
3
minimum
for
Count
Five
support
of
this
request,
defense
counsel
pointed
to
the
sentencing
disparity
between
crack
cocaine
and
employment
as
result
of
that
illness.
Dendys
counsel argued that Dendy was selling crack not to support his
own use, but rather to earn money to help offset his parents
support
of
him
during
his
unemployment.
Based
upon
these
with
Dendys
mental
illness,
particularly
Dendys
court
explicitly
rejected
Dendys
request
for
With
regard
to
Dendys
4
remaining
arguments,
the
Dendy to 21 months for Count One, which was the bottom of the
guidelines range, plus the mandatory consecutive sentence of 60
months for Count Five, for a total sentence of 81 months.
II.
A
distinct
Supreme
sentencing
Courts
framework
sentencing
decisions
has
emerged
from
the
since
United
States
v.
Booker, 543 U.S. 220 (2005), the decision in which the Court
rendered
the
advisory.
once-mandatory
federal
sentencing
guidelines
The
A sentencing
starting
courts decision.
point
and
the
initial
benchmark
for
the
must allow the parties to argue for whatever sentence they deem
appropriate
and
consider
their
arguments
court
must
then
choose
in
light
the
sentence
based
of
on
an
Id. at 50.
After
selecting
the
appropriate
sentence,
the
court
Id.
must
See also 18
these
procedural
requirements,
district
court
Apart
enjoys
United States
this
sentencing
framework,
we
review
sentencing
standard.
Procedural
district
court
decided
the
defendants
sentence;
outlined
above
is
procedurally
unreasonable.
If
we
find
that
the
district
court
committed
such
See United
States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010); United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
III.
Dendy
first
contends
that
the
district
court
committed
procedural error by failing to adequately explain the withinguidelines sentence it imposed upon him.
We disagree.
Gall,
552 U.S. at 50; see also Lynn, 592 F.3d at 576; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Carter,
Furthermore, if
party
presents
legitimate
reasons
for
imposing
sentence
Although
an
adequate
explanation
must
every
accompany
are
in
many
ways
tailored
to
the
individual
and
Id.
Dendys
sentencing
range
under
the
guidelines,
and
his
father
below-guidelines sentence.
in
support
of
their
request
for
its
decision
to
reject
Dendys
8
arguments
for
below-
guidelines
requested
sentence
by
the
in
favor
government.
of
the
Rita,
guidelines
551
U.S.
at
sentence
356.
The
of
the
PSR
and
the
governments
sentencing
In sum, the
also
hold
that
the
Dendys within-guidelines
district
sentence
courts
was
explanation
adequate
and
reflected
hearing,
the
district
court
first
for
At the
explicitly
district
court
also
heard
and
with
appropriateness
the
of
governments
a
considered
the
personal
within-guidelines
regarding
sentence.
While
the
the
clear
that
the
court
considered
Dendys
arguments
raised
at
sentencing,
9
we
individualized
that
the
sentence.
propriety
of
See
lesser
Johnson,
587
justification
F.3d
where
at
639
guidelines
(noting
sentence
the
foregoing
explanation,
individualized
and
sentence imposed.
reasons,
though
adequate
we
not
to
hold
that
lengthy,
justify
the
was
the
district
sufficiently
within-guidelines
sentence
at
the
bottom
of
the
guidelines
range.
IV.
Dendy
next
argues
that
his
sentencing
proceeding
was
J.A.
66.
raises
Specifically,
the
serious
Dendy
possibility
10
They really
contends
that
that
the
this
district
court
felt
sentence.
At
it
was
being
pressured
the
outset,
we
to
impose
guidelines
We disagree.
recognize
that
it
is
procedurally
Nelson v. United
States, 129 S. Ct. 890, 892 (2009) (per curiam); Rita, 551 U.S.
at 351; Raby, 575 F.3d at 381.
We refer to a presumption in
Supreme
presumptions
Court
by
decision
sentencing
that
rejected
the
use
Rita,
551
U.S.
courts.
of
such
at
351
(holding that the sentencing court does not enjoy the benefit
of
legal
apply);
presumption
that
Mendoza-Mendoza,
presumption
in
favor
the
597
of
F.3d
Guidelines
at
Guidelines
217
sentence
should
(referring
sentence
as
to
a
any
Rita
presumption).
A sentencing court does not apply a Rita presumption merely
by using the guidelines to orient its thinking or by selecting a
guidelines
sentence.
See
Mendoza-Mendoza,
597
F.3d
at
217.
court
the
concludes
advisory
that
the
guidelines
11
sentencing
range
as
court
did
not
presumptively
avoid
the
Id. at 218.
use
of
words
like
presumption
and
Id.
(internal
Id.
guidelines
reasonable.
neither
as
mandatory
nor
as
presumptively
219
(holding
that
district
court
accorded
Cf. id.
guidelines
an
disagreement
with
that
sentence);
Raby,
575
F.3d
at
377
within-guidelines
sentence
based
on
its
comments
that
reasonable
was
and
that
extremely
imposing
difficult,
if
outside-guidelines
not
impossible).
understand
the
district
court
to
have
intended
the
word
light
of
statement
on
the
reasonableness.
these
considerations,
as
stray
sentencing
remark
we
that
decision
or
view
the
ultimately
its
district
had
no
procedural
13
V.
For
the
foregoing
reasons,
we
conclude
that
Dendys
We therefore affirm.
AFFIRMED
14