UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4698

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID M. SUTTON, JR., a/k/a David M. Sutton,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:07-cr-00052-REP)

Submitted: August 28, 2008 Decided: September 25, 2008

Before NIEMEYER and SHEDD, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

John T. Wood, Petersburg, Virginia, for Appellant. Michael Ronald

Gill, Assistant United States Attorney, Michael Cornell Wallace,

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David M. Sutton, Jr., appeals from his conviction and

twenty-four month sentence after pleading guilty to making false

statements in a transaction with the Department of Housing and

Urban Development, in violation of 18 U.S.C. §§ 1010, 2 (2000).

Sutton’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), in which he asserts there are no meritorious

issues for appeal, but asks this court to review the reasonableness

of Sutton’s sentence. Sutton was given an opportunity to file a

pro se supplemental brief, but has not done so. Finding no error,

we affirm.

Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

First, it must calculate the appropriate advisory Guidelines range.

It must then consider the resulting range in conjunction with the

factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008)

and determine an appropriate sentence. Gall v. United States, 128

S. Ct. 586, 596 (2007). We review the district court’s imposition

of a sentence for abuse of discretion. Id. at 597; see also United

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

“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 § 3553(a) factors, selecting a
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sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence--including an explanation for any

deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.

If there are no procedural errors, we then consider the

substantive reasonableness of the sentence. Id. “Substantive

reasonableness review entails taking into account the totality of

the circumstances, including the extent of any variance from the

Guidelines range.” Pauley, 511 F.3d at 473 (internal quotation

marks and citation omitted). While this court may presume a

sentence within the Guidelines range to be reasonable, we may not

presume a sentence outside the range to be unreasonable. Id.

Moreover, we must give deference to the district court’s decision

that the § 3553(a) factors justify imposing a variant sentence and

to its determination regarding the extent of any variance. Id. at

473-74. “Even if we would have reached a different sentencing

result on our own, this fact alone is ‘insufficient to justify

reversal of the district court.’” Id. at 474 (quoting Gall, 128 S.

Ct. at 597).

At sentencing, Sutton did not object to the findings in

his presentence report or to the Sentencing Guidelines range, which

was calculated at eighteen to twenty-four months. The district

court imposed a sentence at the top of the Guidelines range,

sentencing Sutton to twenty-four months’ incarceration. On appeal,

Sutton contends the district court failed to adequately consider:
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(1) the assistance he provided to the Government; (2) his drug

addiction; (3) the age and relatively minor nature of his previous

convictions; and (4) the Government’s recommendation that he be

sentenced at the midpoint of the Sentencing Guidelines range.

While Sutton claims the district court failed to adequately

consider these factors in determining his sentence, there is no

evidence to support this assertion, as the district court heard

argument from Sutton and explicitly stated that it had considered

the factors set forth under § 3553(a). See United States v.

Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006). The district

court noted that while Sutton had no convictions for crimes of

violence, he had a lengthy criminal history indicating a “pervasive

disregard for the law.” See 18 U.S.C.A. § 3553(a)(1).

Furthermore, in consideration of his drug addiction, the district

court ordered Sutton to participate in a program for substance

abuse. See 18 U.S.C.A. § 3553(a)(2)(D). Sutton has failed to

demonstrate his sentence is procedurally unreasonable, as there is

no evidence in the record indicating the district court failed to

consider his arguments. The district court correctly calculated

the advisory Guidelines range and considered the relevant factors

under 18 U.S.C.A. § 3553(a). Therefore, we affirm Sutton’s

sentence.

In accordance with Anders, we have reviewed the record in this

case and have found no meritorious issues for appeal. We therefore
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affirm Sutton’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes 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 the client. 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