United States v. Omari

Court Case Details
Court Case Opinion




No. 09-4829


Plaintiff – Appellee,



Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.

Submitted: August 4, 2010

Decided: August 16, 2010

Before GREGORY, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William I. Diggs, THE LAW FIRM OF WILLIAM I. DIGGS, Myrtle
Beach, South Carolina, for Appellant. Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for

Unpublished opinions are not binding precedent in this circuit.


Said Omari pled guilty pursuant to a plea agreement to

conspiracy to possess with intent to distribute heroin, ecstasy,

and 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 846 (2006) (“Count One”), and possession of a firearm during

and in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A) (2006) (“Count Three”). The district

court sentenced Omari to seventy-two months’ imprisonment on

Count One and sixty months’ imprisonment on Count Three, to be

served consecutively. Omari’s sentence fell within his advisory

guidelines range. Omari timely noted his appeal.

On appeal, counsel for Omari has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). In his

Anders brief, counsel suggests that the district court erred in


denying his request for a variance sentence.

We affirm.

This court reviews a sentence imposed by a district

court under a deferential abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 41 (2007); United States v. Evans,

526 F.3d 155, 161 (4th Cir. 2008). In reviewing a sentence, we

must first ensure that the district court committed no

procedural error. Gall, 552 U.S. at 51. If we find no


Omari, informed of his right to file a pro se supplemental

brief, has not done so.


procedural error, we

then consider

the substantive

reasonableness of the sentence. Id. We presume that a sentence

within a properly calculated guidelines range is reasonable.

See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

“When rendering a sentence, the district court must

make an individualized assessment based on the facts presented.”

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

(internal quotation marks and emphasis omitted). Accordingly, a

sentencing court must apply the relevant 18 U.S.C. § 3553(a)

(2006) factors to the particular facts presented and must

“‘state in open court’” the particular reasons that support its

chosen sentence. Id. (quoting 18 U.S.C. § 3553(c) (2006)).

To meet this requirement, the district court must set forth

enough to show

a reasoned basis for its decision and

consideration of the parties’ arguments. Id. “‘Where the

defendant or prosecutor presents nonfrivolous reasons for

imposing a different sentence’ than that set forth in the

advisory Guidelines, a district judge should address the party’s

arguments and ‘explain why he has rejected those arguments.’”

Id. (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).

Failure to do so constitutes procedural error. United States v.

Lynn, 592 F.3d 572, 575-76 (4th Cir. 2010).

We have reviewed the record and conclude that the

district court did not commit procedural error in sentencing


Omari. Additionally, Omari’s sentence is substantively

reasonable, as it falls within his advisory guidelines range,

and the record does not rebut the presumption of reasonableness

that this court applies to such a sentence.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Omari’s conviction and sentence. This court

requires that counsel inform Omari, in writing, of the right to

petition the Supreme Court of the United States for further

review. If Omari 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 Omari.

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




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