United States v. Hulse-Ebanks

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4087


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


DAVID ALEJANDRO HULSE-EBANKS,

Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cr-00140-RBS-FBS-1)


Submitted: September 24, 2009

Decided: October 26, 2009


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Dana J. Boente, Acting United States Attorney,
Randy Stoker, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

David Hulse-Ebanks pled guilty to unlawful reentry by

a previously deported felon, 8 U.S.C. § 1326(a), (b)(2) (2006),

and was sentenced to seventy-two months in prison. He now

appeals his sentence. We affirm.

I

Hulse-Ebanks first contends that he was denied his

right of allocution, Fed. R. Crim. P. 32(i)(4)(A)(ii), because

the district court pronounced sentence prior to affording him

the opportunity to address the court. We disagree.

At sentencing, the court first found that the advisory

Guidelines range had been correctly calculated. Next, the court

addressed in detail the 18 U.S.C. § 3553(a)(2006) sentencing

factors and their application to this case. Finally, the court

concluded that a sentence of seventy-two months was “sufficient

but not greater than necessary to comply with the purposes of”

§ 3553. The court then stated, “Before the court finalizes any

sentence that it imposes, the defendant . . . may . . . make any

statement to the court that he wishes to make.” Hulse-Ebanks

addressed the court. The court then sentenced him to seventy-

two months in prison. In pronouncing sentence, the court stated

that it had considered his statement.

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We conclude that Hulse-Ebanks was not denied his right

of allocution. Rather, while the district court announced a

tentative sentence, it did not impose that sentence until after

hearing Hulse-Ebanks’ allocution. There was no violation of

Rule 32(i)(4)(A)(ii). See United States v. Boose, 403 F.3d

1016, 1017 (8th Cir. 2005); United States v. Lopez-Lopez, 295

F.3d 165, 171 (1st Cir. 2002); United States v. Leasure, 122

F.3d 837, 840 (9th Cir. 1997).

II

Hulse-Ebanks

contends

that

his

sentence

is

unreasonable because it is longer than necessary to achieve the

statutory goals of sentencing set forth in 18 U.S.C. § 3553(a).

We review a sentence for reasonableness, applying an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 128 S.

Ct. 586, 597 (2007). In conducting our review, we first examine

the sentence for “significant procedural error,” including

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence.” Id. The district court must provide an

“individualized assessment” based upon the specific facts before

it. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)

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(emphasis omitted). We next “consider the substantive

reasonableness of the sentence imposed.” Id. At this stage, we

“take into account the totality of the circumstances.” Gall,

128 S. Ct. at 597.

Here, the district court followed the necessary

procedural

steps

in

sentencing

Hulse-Ebanks,

correctly

calculating the advisory Guidelines range, performing an

individualized assessment of the § 3553(a) factors as they

applied to the facts of the case, and stating in open court the

reasons for the sentence. We may presume that the sentence,

which falls within the advisory Guidelines range, is reasonable.

See United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

Hulse-Ebanks offers no persuasive argument to rebut this

presumption. We conclude that the sentence is procedurally and

substantively reasonable and that the district court did not

abuse its discretion in sentencing him to seventy-two months in

prison.

III

We accordingly affirm. 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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