UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4607

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

MARVIN WILBERT POWELL, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior 

District Judge. (5:04-cr-00356-F-1) 

Submitted: April 30, 2009 Decided: June 19, 2009 

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North 

Carolina, for Appellant. George E. B. Holding, Acting United 

States Attorney, Anne M. Hayes, Jennifer P. May-Parker, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 

 

 
PER CURIAM: 

 Following a jury trial, Marvin Powell was convicted 

of: (1) aiding and abetting another in possessing with intent to 

distribute fifty grams or more of cocaine base and a quantity of 

cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count 

One); (2) conspiracy to possess with intent to distribute fifty 

grams or more of cocaine base and a quantity of cocaine, in 

violation of 21 U.S.C. § 846 (2006) (Count Two); (3) possession 

with intent to distribute marijuana, in violation of 21 U.S.C. 

§ 841(a)(1) (Count Three); (4) possession of a firearm in 

furtherance of a drug trafficking crime, in violation of 

18 U.S.C. § 924(c)(1) (2006) (Count Four); and (5) being a felon 

in possession of a firearm, in violation of 18 U.S.C. 

§§ 922(g)(1) (2006), 924 (2006) (Count Five). On appeal, Powell 

argues his sentence is unreasonable in light of the sentence a 

co-defendant received and the sentences other similarly situated 

defendants have received in this circuit. We affirm. 

 This court reviews a sentence imposed by a district 

court under a deferential abuse of discretion standard. 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, such as failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

2 
§ 3553(a) factors, selecting a 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 v. United States, 128 S. Ct. 586, 597 

(2007). If there are no procedural errors, we then consider the 

substantive reasonableness of the sentence. Id. A 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, 511 F.3d 468, 

473 (4th Cir. 2007) (quotations and citation omitted). While we 

may presume a sentence within the guidelines range to be 

reasonable, we may not presume a sentence outside the range to 

be unreasonable. Id. Even if the reviewing court would have 

reached a different result, this fact alone is insufficient to 

justify reversal of the district court. Id. at 474. 

 Powell’s claim that his sentence is unreasonable 

because it fails to consider the disparity between his sentence 

and that of a co-defendant is without merit. Many valid factors 

can result in the imposition of different sentences among 

co-defendants. Here, for example, Powell’s co-defendant pled 

guilty and cooperated with the Government. See United States v. 

Abu Ali, 528 F.3d 210, 264 (4th Cir. 2008). Therefore, the 

district court did not abuse its discretion in rejecting this 

argument. 

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 Next, Powell’s claim that his sentence is unreasonable 

in light of sentences other similarly situated defendants have 

received is raised for the first time on appeal and is, 

therefore, subject to plain error review. Plain error requires 

Powell to establish that: (1) there was error; (2) the error was 

“plain;” and (3) the error affected his substantial rights. 

United States v. Olano, 507 U.S. 725, 732 (1993). Even if he 

makes this showing, “Rule 52(b) leaves the decision to correct 

the forfeited error within the sound discretion of the court of 

appeals.” Id. (quoting United States v. Young, 470 U.S. 1, 15 

(1985) (internal quotations omitted)). We have reviewed the 

record and the briefs submitted by the parties and determine 

that Powell fails to establish plain error. The record does not 

indicate any significant procedural error committed by the 

district court in sentencing Powell, and we find his sentence is 

substantively reasonable. 

 Accordingly, we deny Powell’s motion to supplement his 

brief and affirm the judgment of the district court. We 

dispense with oral argument as the facts and legal contentions 

are adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED