United States v. Brown , 305 F. App'x 72 ( 2008 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4402
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    TERWIN LEMAR BROWN,
    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-00122-WO-1)
    Submitted:    December 11, 2008             Decided: December 15, 2008
    Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Louis C. Allen III, Federal Public Defender, Gregory Davis,
    Senior Litigator, Winston-Salem, North Carolina, for Appellant.
    Michael Francis Joseph, Angela Hewlett Miller, Assistant United
    States Attorneys, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Terwin Lemar Brown appeals his conviction and sentence
    imposed    for   possession     of    a   firearm         by   a    convicted     felon.
    Brown’s counsel has filed an appeal under Anders v. California,
    
    386 U.S. 738
       (1967),    raising        the   issue      of    whether     Brown’s
    sentence was properly calculated and reasonable.                          The Government
    declined to file a brief.           Brown has filed a pro se supplemental
    brief.    Finding no error, we affirm.
    Counsel raises the issue of whether the district court
    committed procedural or substantive error in determining Brown’s
    sentence, but concludes that there was no sentencing error.                            A
    sentence is reviewed for abuse of discretion with the review
    encompassing        both   procedural           soundness           and      substantive
    reasonableness.        Gall v. United States, 
    128 S. Ct. 586
    , 597
    (2007).      Brown’s counsel questions whether the court erred in
    attributing a total of five criminal history points for five
    separate     convictions      for    misdemeanor          criminal        contempt   for
    failure to pay child support.                 Because Brown was sentenced to
    thirty    days   for   each    conviction,          the   five      criminal     history
    points were properly attributed.
    Next, counsel raises whether Brown’s 81-month sentence
    was greater than necessary to comply with 
    18 U.S.C. § 3553
    (a)
    (2006).      The properly calculated Guidelines range was 77 to 96
    months.      A sentence within the Guidelines range is presumptively
    2
    reasonable.        The record reveals that the court considered the
    § 3553(a) factors and there is no indication that the district
    court     abused       its     discretion              in     fashioning        the       sentence.
    Applying     a   presumption            of       reasonableness         to    the     Guidelines
    sentence, see United States v. Go, 
    517 F.3d 216
    , 218 (4th Cir.
    2008); see also Rita v. United States, 
    127 S. Ct. 2456
    , 2462-69
    (2007)      (upholding             presumption                of    reasonableness               for
    within-Guidelines        sentence),              we    conclude      that       Brown      has   not
    rebutted the presumption of reasonableness and that his sentence
    is reasonable.
    Brown’s          pro       se    supplemental          brief      challenges         his
    arrest as a violation of the Fourth Amendment, alleges that he
    received ineffective assistance of counsel in pleading guilty,
    again    challenges      the       inclusion           of    the   five      criminal      history
    points    for    failure          to    pay      child       support,     and       alleges      that
    counsel was ineffective in failing to present evidence that the
    criminal     history         was       improperly           calculated       when     a   juvenile
    conviction       was    counted             as    an    adult      adjudication           and    the
    suspended    portion         of    the       sentence        was   improperly         considered.
    After reviewing the record, we find no merit in these claims.
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.      We therefore affirm Brown’s conviction and sentence.
    This court requires that counsel inform his client, in writing,
    3
    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   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 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
    4
    

Document Info

Docket Number: 08-4402

Citation Numbers: 305 F. App'x 72

Judges: Niemeyer, Duncan, Agee

Filed Date: 12/15/2008

Precedential Status: Non-Precedential

Modified Date: 11/5/2024