United States v. Applewhite , 305 F. App'x 139 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4384
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARC EDWIN APPLEWHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00336-NCT-1)
Submitted: November 24, 2008 Decided: December 29, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bryan Gates, Winston-Salem, North Carolina, for Appellant.
Angela Hewlett Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marc Edwin Applewhite appeals the twenty-seven month
sentence imposed following his guilty plea to one count of wire
fraud, in violation of 18 U.S.C. § 1343 (2006) (“Count 7”), one
count of possession of a forged security, in violation of 18
U.S.C. § 513(a) (2006) (“Count 9”), and the twenty-four month
consecutive sentence imposed following his guilty plea to one
count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (2006) (“Count 8”). Applewhite’s attorney filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), certifying there are no meritorious grounds for appeal,
but questioning the calculation of Applewhite’s criminal history
and the reasonableness of his sentence. Although advised of his
right to do so, Applewhite has declined to file a pro se
supplemental brief. Finding no reversible error, we affirm.
Applewhite first contends the district court
erroneously ascribed two criminal history points for convictions
he did not sustain. Because Applewhite did not raise this issue
before the district court, our review is for plain error. Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). Applewhite provides no evidence suggesting the two
challenged convictions were improperly counted, and there is no
basis in the record on which to find the district court
committed any error — let alone plain error — in calculating
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Applewhite’s criminal history. Accordingly, we reject this
basis for appeal.
We further conclude Applewhite’s sentence was
reasonable. The Supreme Court has instructed that,
“[r]egardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must review
the sentence under an abuse-of-discretion standard.” Gall v.
United States, 128 S. Ct. 586, 597 (2007). Appellate courts are
charged with reviewing sentences for reasonableness. Id. at
594, 597. Reasonableness review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id. at 597.
In determining whether a sentence is procedurally
reasonable, we first assess whether the district court properly
calculated the defendant’s advisory Guidelines range. Id. at
596-97. We must then consider whether the district court 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 sufficiently explain the
selected sentence. Id. at 597; United States v. Pauley, 511
F.3d 468, 473 (4th Cir. 2007). Finally, we review the
substantive reasonableness of the sentence, “taking into account
the ‘totality of the circumstances.’” Pauley, 511 F.3d at 473(quoting Gall, 128 S. Ct. at 597). We afford sentences that
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fall within the properly calculated Guidelines range a
presumption of reasonableness, see id., a presumption permitted
by the Supreme Court. Rita v. United States, 127 S. Ct. 2456,
2459, 2462 (2007).
The district court properly calculated Applewhite’s
sentencing range under the Guidelines * and invited counsel to
make any relevant argument pursuant to the § 3553(a) sentencing
factors. After hearing counsel’s arguments, permitting
Applewhite the opportunity to allocute, and considering the
§ 3553(a) factors, the court sentenced Applewhite to a total of
fifty-one months’ imprisonment, which is within the properly
calculated Guidelines range. As our review of the record
reveals no procedural or substantive defect in Applewhite’s
sentence, we conclude Applewhite cannot overcome the presumption
of reasonableness that attaches to his sentence. See Rita, 127
S. Ct. at 2459, 2462.
*
The district court calculated that Applewhite’s total
adjusted offense level for Counts 7 and 9 was fourteen, and that
he had four criminal history points. U.S. Sentencing Guidelines
Manual (“USSG”) § 2B1.1(a)(1)(B), (b)(1)(F) (2007). Thus, with
a category III criminal history, Applewhite’s advisory
Guidelines range on Counts 7 and 9 was twenty-one to twenty-
seven months’ imprisonment. USSG ch. 5, pt. A, sentencing
table. Applewhite also faced a mandatory twenty-four month
consecutive sentence on Count 8. 18 U.S.C. § 1028A(a)(1); USSG
§ 2B1.6(a).
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Although not raised by counsel, we further note there
was no infirmity in Applewhite’s conviction. The district court
fully complied with the requirements of Fed. R. Crim. P. 11 in
conducting Applewhite’s plea hearing. The district court
advised Applewhite regarding his rights under federal law, the
nature and elements of the charges to which he was pleading
guilty, and the applicable statutory mandatory minimum,
statutory maximum, and period of supervised release. The court
also questioned Applewhite to ensure he was competent to plead
guilty. Applewhite informed the court that, prior to signing
the plea agreement, he had discussed it with his attorney, with
whom he was satisfied. The district court further accepted the
written factual basis of Applewhite’s guilty plea. There simply
was no Rule 11 error.
In accordance with Anders, we have reviewed the
entirety of the record and found no meritorious issues.
Accordingly, we affirm the district court’s judgment. We
further deny counsel’s motion to withdraw from representation.
We require that counsel inform Applewhite, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Applewhite 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
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a copy thereof was served on Applewhite. We dispense with oral
argument because the facts and legal contentions are adequately
set forth in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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