United States v. Lord, 4th Cir. (2010)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 08-5043
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
CHRISTOPHER LYNN LORD,
Defendant Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00274-1)
Submitted:
July 20, 2010
Before KING and

Circuit Judge.
SHEDD,
Decided:
Circuit
Judges,
and
August 19, 2010
HAMILTON,
Senior
Affirmed by unpublished per curiam opinion.
J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP,

Greensboro, North Carolina, for Appellant. Michael A. DeFranco,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher
written
plea
Lynn
agreement,
Lord
to
pled
one
guilty,
count
of
pursuant
using
to
interstate
commerce to attempt to persuade, induce, entice, or coerce a

minor to engage in illegal sexual activity, * in violation of
18 U.S.C.
2422(b)
(2006).
The
district
court
calculated
Lords Guidelines range at 235 to 293 months imprisonment, see

U.S. Sentencing Guidelines Manual (2006), and sentenced Lord to
235
months
release.
imprisonment
and
twenty-five
Lord timely appealed.
years
supervised
On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), in

which he raises two sentencing issues.
Lord has filed a pro se
supplemental brief raising several sentencing challenges and a

challenge to his conviction.
We affirm.
Counsel questions whether the district court erred in

denying
Lords
Guidelines range.
request
for
variant
sentence
below
the
However, a district courts refusal to depart
from the applicable Guidelines range does not provide a basis

for appeal under 18 U.S.C. 3742(a) (2006), unless the court
failed to understand its authority to do so.
Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
*
United States v.
After review of the
Specifically, the indictment alleged that the sexual

activity would violate N.C. Gen. Stat. 14-202.1 (2009), which
prohibits taking indecent liberties with a minor.
record, we find no evidence that the district court failed to

understand its authority to impose a below-Guidelines sentence.
Accordingly, this claim is not cognizable on appeal.
Turning to the sentence imposed, we review it under a
deferential
abuse-of-discretion
standard.
States, 552 U.S. 38, 41 (2007).

must
first
ensure
that
Gall
v.
United
In conducting this review, we
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
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, United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009) (internal quotation marks and emphasis omitted),
and must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of
fair
sentencing,
Gall,
552
U.S.
at
50.
When
imposing
sentence within the Guidelines, however, the [district courts]

explanation
need
not
be
elaborate
or
lengthy
because
[G]uidelines sentences themselves are in many ways tailored to

the individual and reflect approximately two decades of close
attention
to
federal
sentencing
3
policy.
United
States
v.
Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation
marks omitted).
Once we have determined that the sentence is free of
procedural
error,
reasonableness
of
we
the
must
consider
sentence,
the
tak[ing]
substantive
into
account
Gall, 552 U.S. at 51.
totality of the circumstances.
the
If the
sentence is within the appropriate Guidelines range, we apply a

presumption on appeal that the sentence is reasonable.
United
States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
Lord
challenges
the
district
courts
calculation
of
the base offense level on the basis that the presentence report
(PSR), which the district court adopted, improperly found him
to be a repeat and dangerous sex offender against minors, see
USSG 4B1.5.
Lord, however, has not offered any evidence to
the contrary or specifically explained why the PSR is inaccurate

or unreliable.
His mere disagreement with the PSRs assessment
of his behavior, particularly on appeal for the first time, is,

without
more,
insufficient
dispute.
See
(4th Cir.
1990).
United
to
States
Because
put
v.
Lord
the
PSRs
Terry,
916
failed
to
findings
F.2d
make
the
157,
into
162
required
affirmative showing that the PSR was inaccurate or unreliable,

the
district
court
findings . . . without
more
was
free
specific
to
inquiry
adopt
or
[its]
explanation.
Id. (internal quotation marks omitted).
We accordingly affirm
the district courts calculation of Lords base offense level.

Additionally, we conclude that the district court did
not
otherwise
sentence.
commit
The
reversible
court
procedural
correctly
error
calculated
in
imposing
the
advisory
Guidelines range and heard argument from counsel and allocution

from
Lord.
The
court
considered
the
3553(a)
factors
and
explained that the within-Guidelines sentence was warranted in

light of the nature and circumstances of the offense, Lords
history and characteristics, and the need to protect the public
from further crimes by Lord.
Further, neither counsel nor Lord
offers any grounds to rebut the presumption on appeal that the

within-Guidelines
sentence
of
235
months
imprisonment
is
substantively reasonable.
Next,
counsel
questions
whether
the
district
court
erred in not ordering the 235-month imprisonment term to run

concurrently to the prison term Lord was then serving for a
violation of his state probation.
However, as the prison term
Lord
sentencing
was
serving
at
the
time
of
for
the
subject
federal conviction pertained to an unrelated state conviction,

the district court was free to impose a concurrent, partially
concurrent,
or
consecutive
sentence
5G1.3(c), p.s.
on
Lord.
See
USSG
In his pro se brief, Lord contends that the district

court erred by failing to consider USSG 5G1.3(c), p.s., when
it
ordered
the
235-month
prison
term
to
run
consecutive
to,
rather than concurrent with, his undischarged state prison term.

Although
we
ordinarily
review
legal
questions
concerning
the
application of the Sentencing Guidelines de novo, see United

States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010), where a
defendant argues on appeal that the district court erred in its
consideration
of
USSG
5G1.3
p.s.,
but
did
not
invoke
the
Guideline or argue that he was entitled to a concurrent sentence

in the district court, we review only for plain error, United
States v. Rouse, 362 F.3d 256, 260 (4th Cir. 2004).
not
demonstrated
error
under
either
standard
Lord has
of
review.
Although the district court did not specifically mention USSG

5G1.3(c), p.s., at the sentencing hearing, the provision was
cited in the PSR, and it is clear from the record that the
district court considered the PSR as well as the arguments by
counsel for and against a concurrent sentence.
can
fairly
infer
that
the
district
court
Accordingly, we
considered
5G1.3(c), p.s., and Lord has not shown any error.
USSG
See United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (A [district]

court need not engage in ritualistic incantation in order to
establish its consideration of a legal issue.
It is sufficient
if . . . the district court rules on issues that have been fully

6
presented for determination.
Consideration is implicit in the
court's ultimate ruling.).

Lord also raises a pro se challenge to the courts
imposition
of
special
release
providing
control
any
that
sexually
condition
he
not
of
his
view,
explicit
term
of
purchase,
materials
supervised
possess,
including,
but
or
not
limited to[,] pictures, magazines, video tapes, movies, or any

material obtained through access to any computer or any material
linked to computer access or use.
Because Lord did not object
to the special condition at the time of sentencing, we review

See United States v. Rodriguez-Rodriguez,
only for plain error.
441 F.3d 767, 772 (9th Cir. 2006).

we
conclude
that
the
condition
After review of the record,

is
reasonable,
given
Lords
background and the need for the district court to protect the
public.
Lord thus fails to show plain error.

Turning to Lords conviction, because he did not move
in the district court to withdraw his guilty plea, the Fed. R.

Crim. P. 11 hearing is reviewed for plain error.
See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

review
of
the
transcript
of
the
plea
hearing
leads
Our
us
to
conclude that the district court substantially complied with the

mandates
of
Critically,
Rule
the
11
in
transcript
accepting
reveals
Lords
that
the
guilty
plea.
district
court
ensured the plea was supported by an independent factual basis

7
and that Lord entered the plea knowingly and voluntarily with an
understanding
DeFusco,
of
949
the
F.2d
consequences.
114,
116,
See
United
119-20
(4th
States
Cir.
v.
1991).
Accordingly, no plain error occurred in the conduct of the plea

proceeding.
Finally, we reject as unsupported by the record
Lords claim that he is actually innocent of the offense to

which he pled guilty because the Government failed to show that
the activity he attempted to induce was sexual activity.
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
courts
judgment.
This court requires that counsel inform Lord, in writing, of the

right to petition the Supreme Court of the United States for
further review.
If Lord requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then

counsel
may
move
representation.
in
and
materials
legal
before
court
for
leave
to
withdraw
from
Counsels motion must state that a copy thereof
was served on Lord.

facts
this
We dispense with oral argument because the
contentions
the
court
are
adequately
and
argument
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

July 20, 2010

Before KING and

August 19, 2010

Affirmed by unpublished per curiam opinion.

J. Donald Cowan, Jr., Heather H. Wright, ELLIS & WINTERS, LLP,

Unpublished opinions are not binding precedent in this circuit.

commerce to attempt to persuade, induce, entice, or coerce a

Lords Guidelines range at 235 to 293 months imprisonment, see

Lord timely appealed.

On appeal, counsel has filed a

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

Lord has filed a pro se

supplemental brief raising several sentencing challenges and a

Counsel questions whether the district court erred in

However, a district courts refusal to depart

from the applicable Guidelines range does not provide a basis

After review of the

Specifically, the indictment alleged that the sexual

record, we find no evidence that the district court failed to

States, 552 U.S. 38, 41 (2007).

In conducting this review, we

significant procedural error, such as failing to calculate (or

Guidelines as mandatory, failing to consider the [18 U.S.C.]

clearly erroneous facts, or failing to adequately explain the

When rendering a sentence, the

district court must make an individualized assessment based on

sentence within the Guidelines, however, the [district courts]

[G]uidelines sentences themselves are in many ways tailored to

Gall, 552 U.S. at 51.

totality of the circumstances.

sentence is within the appropriate Guidelines range, we apply a

Lord, however, has not offered any evidence to

the contrary or specifically explained why the PSR is inaccurate

His mere disagreement with the PSRs assessment

of his behavior, particularly on appeal for the first time, is,

affirmative showing that the PSR was inaccurate or unreliable,

Id. (internal quotation marks omitted).

the district courts calculation of Lords base offense level.

Guidelines range and heard argument from counsel and allocution

explained that the within-Guidelines sentence was warranted in

Further, neither counsel nor Lord

offers any grounds to rebut the presumption on appeal that the

erred in not ordering the 235-month imprisonment term to run

However, as the prison term

federal conviction pertained to an unrelated state conviction,

In his pro se brief, Lord contends that the district

rather than concurrent with, his undischarged state prison term.

application of the Sentencing Guidelines de novo, see United

Guideline or argue that he was entitled to a concurrent sentence

Although the district court did not specifically mention USSG

5G1.3(c), p.s., and Lord has not shown any error.

States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (A [district]

if . . . the district court rules on issues that have been fully

presented for determination.

Consideration is implicit in the

court's ultimate ruling.).