United States of America v. Kendall Schuyler, a/k/a Sleepy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDALL SCHUYLER, a/k/a Sleepy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:98-cr-00259-BEL-13)
Submitted: December 2, 2010 Decided: January 7, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Robert R. Harding, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kendall Schuyler appeals the third amended judgment of
conviction, claiming that the district court erred by applying
the presumption of reasonableness to the Guidelines sentence.
He also claims his Sixth Amendment right to a jury trial was
violated when the court considered uncharged conduct in
determining the Guidelines sentence and that the drug quantity
was not proven beyond a reasonable doubt. We affirm.
This court reviews the district court’s sentence under
a “deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. at 51. In determining
procedural reasonableness, this court first assesses whether the
district court properly calculated the defendant’s Guidelines
range. Id. at 49, 51. The court must then consider whether the
district court treated the Guidelines as mandatory, failed to
consider the 18 U.S.C. § 3553(a) (2006) factors and any
arguments presented by the parties, selected a sentence based on
“clearly erroneous facts,” or failed to explain sufficiently the
selected sentence. Gall, 552 U.S. at 50-51; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). This court also
reviews whether the district court made “an individualized
assessment based on the facts presented.” Gall, 552 U.S. at 50;

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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” (internal quotation marks
omitted)).
When reviewing for substantive reasonableness, this
court takes into account the “totality of the circumstances.”
Gall, 552 U.S. at 51. This court accords a sentence within a
properly-calculated Guidelines range an appellate presumption of
reasonableness. See United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008). At the same time, the district court “may not
presume that the Guidelines range is reasonable” but “must make
an individualized assessment based on the facts presented.”
Gall, 552 U.S. at 50. The presumption of reasonableness “is an
appellate court presumption . . . . [T]he sentencing court does
not enjoy the benefit of a legal presumption that the Guidelines
sentence should apply.” Rita v. United States, 551 U.S. 338,
351 (2007). “Rita presumptions are forbidden in sentencing
courts” because “they confer the force of law upon the
Guidelines.” United States v. Mendoza-Mendoza, 597 F.3d 212,
217 (4th Cir. 2010). If a sentencing court applies a Rita
presumption, the sentence is procedurally unreasonable. Id. at
216-17.

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Procedural errors raised for the first time on appeal
are reviewed for plain error. United States v. Lynn, 592 F.3d
572, 577 (4th Cir. 2010). In order to show that there was plain
error, Schuyler must show “(1) an error was made; (2) the error
is plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
This court retains discretion to correct the error and will do
so only if the error “‘seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” Id. at 343
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
In this instance, we conclude there was no plain
error. Assuming without deciding that the district court did
apply a presumption of reasonableness, we note that Schuyler
received the agreed-upon sentence. Thus, his substantial rights
were not affected.
We also conclude Schuyler’s right to a jury trial was
not violated when the district court applied the cross-reference
for murder when it determined Schuyler’s Guidelines sentence. A
sentencing court may rely on uncharged facts in determining an
appropriate sentence within the statutory range. United States
v. Booker, 543 U.S. 220, 233 (2005). Also, after Booker, this
court has already stated that a sentencing court continues to
make those factual findings concerning sentencing factors by a

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preponderance of the evidence United States v. Jeffers, 570
F.3d 557, 570 (4th Cir.); cert. denied, 130 S. Ct. 645 (2009).
In addition, we conclude that Schuyler’s claim that
the drug quantity was not supported by a preponderance of the
evidence is moot because, given the cross-reference for murder,
the drug quantity has no bearing on Schuyler’s Guidelines
sentence.
Accordingly, we affirm. 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

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