UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5209

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

DAVID CICALESE, 

Defendant – Appellant. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Elkins. John Preston Bailey, 

Chief District Judge. (2:08-cr-00024-REM-JSK-1) 

Submitted: August 25, 2010 Decided: September 15, 2010

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Katy J. Cimino, Assistant Federal Public Defender, Clarksburg, 

West Virginia, for Appellant. Stephen Donald Warner, Assistant 

United States Attorney, Elkins, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

David Cicalese pled guilty, pursuant to a written plea 

agreement, to one count of possession of child pornography, in 

violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2010). 

The district court calculated Cicalese’s sentencing range under 

the U.S. Sentencing Guidelines Manual (“USSG”) (2008) at 87 to 

108 months’ imprisonment and imposed a variant sentence of 60 

months’ imprisonment. The court also imposed a lifetime term of 

supervised release. Cicalese now appeals. Counsel has filed a 

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

stating that there are no meritorious issues for appeal, but 

suggesting that the lifetime term of supervised release is 

substantively unreasonable. Cicalese was advised of his right 

to file a pro se supplemental brief, but he has not done so. 

The Government has declined to file a brief and does not seek to 

enforce the plea agreement’s appeal waiver.*

We review the district court’s sentence, “whether 

inside, just outside, or significantly outside the Guidelines 

range,” under a “deferential abuse-of-discretion standard.” 

We affirm.

 * Cicalese waived his right to appeal his sentence in the 

plea agreement. Because the Government fails to assert the 

waiver as a bar to the appeal, however, we may consider the 

issue raised in the Anders brief and conduct an Anders review. 

See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 

2007).
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Gall v. United States, 552 U.S. 38, 41 (2007). In conducting 

this review, we must first ensure “that the district court 

committed no significant procedural error, such as failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence.” Id. at 51. “When rendering a 

sentence, the district court must make an individualized 

assessment based on the facts presented,” applying the “relevant 

§ 3553(a) factors to the specific circumstances of the case 

before it.” United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009) (internal quotation marks and emphasis omitted). 

The district court must also “state in open court the particular 

reasons supporting its chosen sentence” and “set forth enough to 

satisfy” this court that it has “considered the parties’ 

arguments and has a reasoned basis for exercising [its] own 

legal decisionmaking authority.” Id. (internal quotation marks 

omitted).

If the sentence is free from procedural error, we then 

review it for substantive reasonableness. Gall, 552 U.S. at 51. 

“Substantive reasonableness review entails taking into account 

the ‘totality of the circumstances, including the extent of any 

variance from the Guidelines range.’” United States v. Pauley, 
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511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 

51). Even if we would have imposed a different sentence, “this 

fact alone is ‘insufficient to justify reversal of the district 

court.’” Id. at 474 (quoting Gall, 552 U.S. at 51).

In this case, the district court correctly calculated 

and considered the Guidelines range and heard argument from 

counsel and allocution from Cicalese. The court also gave an 

individualized assessment of Cicalese’s case, concluding that a 

sentence of 60 months’ imprisonment was warranted in light of 

the nature and circumstances of the offense, Cicalese’s history 

and characteristics, and the need to protect the public and

provide Cicalese with appropriate treatment. We conclude that 

the district court adequately explained its rationale for 

imposing the variant prison sentence and that the reasons relied 

upon by the district court are valid considerations under 

§ 3553(a) and justify the sentence imposed. See Pauley, 

511 F.3d at 473-76.

With respect to the term of supervised release, the 

statutory maximum term of supervised release for an offense 

under 18 U.S.C. § 2252A is life, see 18 U.S.C.A. § 3583(k)

(West Supp. 2010), and the Sentencing Guidelines recommend that 

the statutory maximum be imposed, USSG § 5D1.2(b), p.s. After a 

review of the record, we conclude that the district court did 

not abuse its discretion in imposing a lifetime term of 
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supervised release, given the serious nature of Cicalese’s crime 

and the need to rehabilitate Cicalese and to protect the public.

Finally, in accordance with Anders, we have reviewed 

the entire record in this case and have found no meritorious 

issues for review. We therefore affirm the district court’s 

judgment. This court requires that counsel inform Cicalese, in

writing, of the right to petition the Supreme Court of the 

United States for further review. If Cicalese 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 Cicalese. 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