UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4596

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTHONY EARL RIVERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:12-cr-00388-FL-1)

Submitted: May 19, 2014 Decided: May 22, 2014

Before WILKINSON, MOTZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Anthony Earl Rivers appeals from his forty-six-month 

sentence imposed pursuant to his guilty plea to possession of a 

firearm by a convicted felon. On appeal, Rivers contends that 

the district court erred by (1) failing to order the Government 

to file a motion for an additional one-point offense level 

reduction for acceptance of responsibility under U.S. Sentencing 

Guidelines Manual § 3E1.1(b) (2012); (2) failing to adequately 

explain Rivers’ sentence; and (3) imposing an unreasonably harsh 

sentence. We affirm.

I.

Rivers first argues that the district court erred in 

failing to award him an extra one-point reduction for acceptance 

of responsibility. In United States v. Divens, 650 F.3d 343 

(4th Cir. 2011), we explained that the Government may not refuse 

to make a § 3E1.1(b) motion for reasons other than a defendant’s 

failure to fulfill the prerequisites listed therein, which 

include: (1) qualifying for application of § 3E1.1(a), (2) an 

offense level of sixteen or greater prior to the application of 

§ 3E1.1(a), and (3) assisting the Government in the 

investigation or prosecution of the defendant’s offense by 

timely notifying authorities of his intention to plead guilty, 

thereby allowing the Government to avoid trial preparation and 

permitting the efficient allocation of Government and court 
3

resources. Id. at 345-47 (§ 3E1.1(b) does not allow the 

Government to refuse to move for the additional reduction solely 

because the defendant has declined to perform some other action 

beneficial to the Government); see also United States v. Lee, 

653 F.3d 170, 173-75 (2d Cir. 2011) (holding that Government 

abuses its discretion when it refuses to make a § 3E1.1(b) 

motion for reasons that are not closely tied to its avoidance of 

preparing for trial). Thus, if the Government’s refusal to make 

a motion for the third § 3E1.1 downward departure point is based 

on something other than the fact that the defendant’s failure to 

timely accept responsibility required the Government to prepare 

for trial, the district court has the authority to order the 

Government to file a motion for reduction. See Divens, 650 F.3d 

at 350.

Here, the Government averred that it chose not to file 

the motion because it had fully prepared for trial. While 

Rivers disputes how complete the Government’s trial preparation 

was prior to his plea, he does not dispute that the Government 

chose not to file a § 3E1.1(b) motion because it believed that 

Rivers’ delay in pleading guilty caused it to expend time and 

resources in developing readiness for trial. In fact, the 

Government informed Rivers when its trial preparation was about 

to begin and warned Rivers that he needed to plead guilty prior 

to that time. Rivers, however, delayed his guilty plea for 
4

nearly two more months until a week prior to trial. We conclude 

that, because the Government’s refusal to make the disputed 

motion was based on a permissible reason, the court lacked the 

authority to order the Government to file the motion. See USSG

§ 3E1.1 cmt. n. 6 (“[T]he Government is in the best position to 

determine whether the defendant has assisted authorities in a 

manner that avoids preparing for trial ....”); see also Divens, 

650 F.3d at 346 (“[T]he Government retains discretion to 

determine whether the defendant's assistance has relieved it of 

preparing for trial.”). Accordingly, Rivers’ claim is without 

merit.

II.

Rivers next contends that the district court did not 

provide sufficient reasoning for the above-Guidelines sentence.1

 

We must ensure that the district court adequately explained the 

sentence imposed. Gall v. United States, 552 U.S. 38, 51 

(2007). The district court is not required to “robotically tick 

through [18 U.S.C.] § 3553(a) [2012]’s every subsection.”

United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). 

However, the district court “must place on the record an 

‘individualized assessment’ based on the particular facts of the 

 1 Rivers’ Guidelines range was thirty to thirty-seven months 

in prison.
5

case before it. This individualized assessment need not be 

elaborate or lengthy, but it must provide a rationale tailored 

to the particular case at hand and adequate to permit 

‘meaningful appellate review.’” United States v. Carter, 564 

F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552 U.S. at 50) 

(internal citation and footnote omitted)). Because Rivers did 

not argue for a specific sentence, we review for reasonableness 

under a plain error standard. United States v. Lynn, 592 F.3d 

572, 576-77 (4th Cir. 2010).

 Our review of the sentencing hearing transcript 

reveals that the district court provided a detailed, 

individualized explanation to support its sentence. Contrary to 

Rivers’ contentions, the court addressed the specific sentencing 

factors in Rivers’ case, including the details of his offense, 

his criminal background, and the need for treatment. Moreover, 

the court specifically tied the facts of Rivers’ case to the 

purposes of sentencing outlined in § 3553. As such, there was 

no procedural error in the court’s explanation of sentence.

III.

Rivers asserts that the district court’s imposition of 

an upward variance rendered his sentence substantively 

unreasonable because the court failed to account for his 

difficult upbringing and failed to provide a sufficient 

justification, rendering Rivers’ sentence greater than necessary 
6

to fulfill the purposes of sentencing. When the district court 

imposes a variance sentence, we “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. 

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). A 

greater variance requires more substantial justification. 

United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 

2011). We will affirm if “the § 3553(a) factors, on the whole, 

justified the sentence” imposed. Id. at 367 (internal quotation 

marks omitted). 

We find that Rivers’ argument is without merit. The 

district court acknowledged Rivers’ background and childhood and 

balanced that against the seriousness of his offense and his 

danger to society. In subsequently imposing a variance sentence 

based upon the totality of the circumstances, the court 

emphasized the need to not trivialize Rivers’ conduct and to 

deter future criminal behavior. In so doing, the court noted 

Rivers’ failure to fully accept responsibility, his gang 

membership,2 the danger inherent in his criminal offense, the 

 2 In his reply brief, Rivers denies that he is a member of a 

gang. However, the district court overruled his objection 

below, and Rivers provides no evidence undermining the district 

court’s factual finding that Rivers belonged to a gang.
7

obstruction involved in his offense, and the need for treatment. 

These considerations speak directly to several § 3553(a) 

factors. 

While Rivers avers that his sentence was greater than 

necessary to comply with the statutory factors, we do not review 

a sentence to determine if it is greater than necessary; 

instead, we review a sentence for reasonableness and an abuse of 

discretion, and more than one sentence can be substantively 

reasonable. United States v. Martin, 520 F.3d 87, 92 (1st Cir. 

2008) (citation omitted) (“[T]here is not a single reasonable 

sentence but, rather, a range of reasonable sentences. 

Consequently, reversal will result if-and only if-the sentencing 

court's ultimate determination falls outside the expansive 

boundaries of that universe.”). Given the district court’s 

consideration of the parties’ arguments and the § 3553(a) 

sentencing factors, and its articulation of appropriate reasons 

warranting an upward variance, we defer to the district court’s 

determination as to the extent of the variance and find Rivers’ 

sentence to be substantively reasonable. United States v. 

Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012) (affirming 

variance from zero-to-six-month Guidelines range to sixty-month 

sentence), cert. denied, 133 S. Ct. 2403 (2013); Diosdado-Star, 

630 F.3d at 366-67 (affirming variance sentence six years 
8

greater than Guidelines range because sentence was based on the 

district court’s examination of relevant § 3553(a) factors). 

Based on the foregoing, we affirm Rivers’ sentence. 

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