UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5005

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD OLISLAGER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:07-cr-00030-BO-1)

Submitted: June 24, 2011 Decided: July 21, 2011

Before MOTZ, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

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

Unpublished opinions are not binding precedent in this circuit.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

In a prior appeal, we remanded this case for 

resentencing, having determined that the district court failed 

to provide an individualized explanation for its determination 

that a 235-month sentence was an appropriate sentence to impose 

on Richard Olislager following his guilty plea to receiving 

child pornography in violation of 18 U.S.C. § 2252(a) (2006). 

On remand, the district court again sentenced Olislager to 235 

months, the bottom of the properly calculated advisory guideline 

range. Olislager again appeals. His attorney has filed a brief 

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

that, in his view, there are no meritorious issues for appeal, 

but questioning whether the sentence imposed was unreasonable 

because the district court did not consider all of the 

sentencing factors, see 18 U.S.C. § 3553(a) (2006), and 

asserting that the Government, by explaining the error that led 

to its agreement to make a sentencing recommendation, undermined 

the recommendation and thus breached the plea agreement. 

Olislager filed a pro se brief challenging two enhancements to 

his offense level determined under the Sentencing Guidelines. 

Finding no error, we affirm Olislager’s sentence.

A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). This review requires consideration of both the 
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procedural and substantive reasonableness of a sentence. Id.; 

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). 

After determining whether the district court properly calculated 

the defendant’s advisory guideline range, this court must decide 

whether the district court considered the § 3553(a) factors, 

analyzed the arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

51; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009) (holding that, while the “individualized assessment need 

not be elaborate or lengthy, . . . it must provide a rationale 

tailored to the particular case . . . and [be] adequate to 

permit meaningful appellate review”). If the sentence is free 

of significant procedural error, the appellate court reviews the 

substantive reasonableness of the sentence. United States v. 

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

In his pro se brief, Olislager contends that his 

sentence is unreasonable because his offense level was enhanced 

based on the use of a computer for possession, transmission, 

receipt or distribution of materials, and also for a pattern of 

activity that involved sexual abuse or exploitation of a minor, 

relying on Olislager’s prior conviction and pending state court 

charges, that were subsequently dismissed. In Olislager’s prior 

appeal, our Anders review included a review of the determination 

of Olislager’s advisory Guidelines range, and we found no error 
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in the application of the enhancement Olislager now challenges. 

Olislager’s challenges to the sentencing enhancements are barred 

from this court’s consideration, under the mandate rule. United 

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that the 

mandate rule “forecloses relitigation of issues expressly or 

impliedly decided by the appellate court[,]” as well as “issues 

decided by the district court but foregone on appeal”). 

Counsel contends that Olislager’s sentence is 

procedurally unreasonable because the district court did not 

consider all of the § 3553(a) factors, especially, the history 

and personal characteristics of the Defendant. While the 

sentencing court is required to consider the factors in 

§ 3553(a), it need not robotically tick through each subsection 

of § 3553(a). See United States v. Johnson, 445 F.3d 339, 345 

(4th Cir. 2006). Here, the court noted that Olislager has a 

history of predatory sexual conduct and that he is a recidivist. 

In light of the likelihood of future conduct and the need to 

protect the public, the court declined Olislager’s request and 

the Government’s recommendation for a sentence below the 

advisory Guidelines range. The court noted that lenient 

treatment was not warranted in light of the seriousness of the 

offense and the danger to the public. By this explanation, we 

are satisfied that the district court has a “reasoned basis for 

exercising [its] own legal decisionmaking authority.” United 
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States v. Engle, 592 F.3d 495, 500 (4th Cir.) (internal 

quotation omitted), cert. denied, 131 S. Ct. 165 (2010).

We therefore conclude that the district court did not 

abuse its discretion in imposing the 235-month sentence—the 

bottom of the advisory Guidelines range. See Gall, 552 U.S. at 

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

(applying appellate presumption of reasonableness to within 

guidelines sentence).

Olislager also contends that the Government breached 

the plea agreement by making the recommendation of a 180-month 

sentence, as it agreed to do, but also explaining that the 

agreement to make the recommendation was inadvertently included 

in the version of the plea agreement that was signed and filed 

with the court. The Supreme Court has held that a criminal 

defendant has no right to an “enthusiastic” recommendation by 

the prosecutor in order to comply with the term in the plea 

agreement requiring the prosecutor to make a specific 

recommendation. United States v. Benchimol, 471 U.S. 453, 455-

56 (1985); see United States v. Coleman, 208 F.3d 786, 792 (9th 

Cir. 2000) (concluding that no breach occurs as long as 

Government’s recommendation (“however grudgingly”) occurs before 

sentencing); United States v. Badaracco, 954 F.2d 928, 941 (3d 

Cir. 1992) (“government need not endorse the terms of its plea 
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agreements enthusiastically”) (internal quotation marks 

omitted). 

Olislager failed to establish that the Government 

breached its plea agreement. Under the terms of the plea 

agreement, the Government was obligated to recommend a sentence 

of 180 months. The Government satisfied this obligation by 

making that recommendation to the court at sentencing. 

Although, in response to inquiry by the court, the Government 

explained that the prosecutor signed and presented the wrong 

plea agreement and therefore erred by agreeing to this 

recommendation, it nonetheless made the recommendation of a 180-

month sentence to the sentencing court, and therefore fulfilled 

its obligation. The Government’s explanation did not result in 

a breach of the plea agreement. 

In accordance with Anders, we have reviewed the entire 

relevant to this appeal and have found no meritorious issues. 

This court requires that counsel inform Olislager, in writing, 

of the right to petition the Supreme Court of the United States 

for further review. If Olislager 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 Olislager. We dispense with oral 

argument because the facts and legal contentions are adequately 
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presented in the materials before the court and argument would 

not aid the decisional process.

AFFIRMED