United States v. James McClure , 547 F. App'x 192 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4293
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ALAN MCCLURE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00055-RLV-DCK-1)
Submitted: November 19, 2013 Decided: November 21, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Alan McClure pled guilty to receiving child
pornography that has been shipped or transported in or affecting
interstate or foreign commerce, in violation of 18 U.S.C.
§ 2252A(a)(2) (2012) (Count 1); and possessing a hard drive
containing visual depictions of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B)
(2012) (Count 2). He was sentenced to 180 months of
imprisonment on each count to be served concurrently. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious grounds for appeal, but raising the following issue:
whether McClure’s prior North Carolina conviction for second
degree sexual offense triggered the fifteen-year mandatory
minimum sentence under 18 U.S.C. § 2252A(b)(1) (2012). For the
reason that follow, we affirm.
McClure’s prior state offense, which involved forcing
a fourteen-year-old girl to perform oral sex, was a proper
predicate offense for the enhancement under § 2252A(b)(1). See
United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011)
(concluding that “involving a minor” modifies only “abusive
sexual conduct” and applying modified categorical approach to
determine proper predicate conviction for § 2252A(b)
enhancement). We therefore conclude that the district court
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properly used McClure’s above state offense to impose a
mandatory minimum fifteen-year sentence.
In accordance with Anders, we have reviewed the record
in this case, including the issues raised in McClure’s pro se
supplemental brief, and have found no meritorious issues for
appeal. McClure’s guilty plea revealed he knowingly and
voluntarily pled guilty, United States v. Vonn, 535 U.S. 55, 58
(2002), and that the hearing complied with Fed. R. Crim. P. 11.
We further find no abuse of discretion in McClure’s sentence,
see Gall v. United States, 552 U.S. 38, 41, 51 (2007) (providing
review standard), and note that he was sentenced within a
properly calculated advisory Sentencing Guidelines range in
which the court expressly considered 18 U.S.C. § 3553(a) (2012)
sentencing factors. See United States v. Mendoza–Mendoza, 597
F.3d 212, 217 (4th Cir. 2010) (noting appellate presumption of
reasonableness for sentence imposed within a properly calculated
Guidelines range).
We therefore affirm McClure’s conviction and sentence.
This court requires that counsel inform McClure, in writing, of
the right to petition the Supreme Court of the United States for
further review. If McClure 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
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was served on McClure. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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