United States v. Nevels , 321 F. App'x 226 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4189
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KNOWLEDGE UNDERSTANDING NEVELS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:04-cr-00256-NCT-2)
Submitted: August 22, 2008 Decided: September 9, 2008
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Milton B. Shoaf, Salisbury, North Carolina, for Appellant. Randall
S. Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Knowledge Understanding Nevels pled guilty to one count
of possession with intent to distribute crack cocaine, in violation
of 21 U.S.C.A. § 841(a)(1) & (b)(1)(A) (West 1999 & Supp. 2008).
He was sentenced to 245 months’ imprisonment. Nevels’ counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating there were no meritorious grounds for appeal, but
raising for the court’s consideration whether the district court
abused its discretion by increasing Nevels’ offense level by two
for possessing a handgun and whether this court should consider
whether Nevels is eligible for resentencing under the reconstituted
guidelines for possession of crack cocaine. Finding no meritorious
issues for appeal, we affirm.
A district court’s factual findings at sentencing are
reviewed for clear error. See 18 U.S.C.A. § 3742 (West 2000 &
Supp. 2008). Questions of law are reviewed de novo. United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Under U.S.
Sentencing Guidelines Manual § 2D1.1 (2006), “[t]he enhancement for
weapon possession . . . should be applied if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense.” USSG § 2D1.1 comment. (n.3). The
enhancement is appropriate if the Government establishes Nevels
constructively possessed the weapon. In so doing, the Government
“must produce evidence showing ownership, dominion, or control over
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the contraband itself or the premises or the vehicle in which the
contraband is concealed.” United States v. Blue, 957 F.2d 106, 107
(4th Cir. 1992) (internal quotation marks omitted). We find no
clear error in the district court’s findings. Thus, we will not
disturb the two-level enhancement.
Insofar as Nevels may wish to take advantage of the
recent amendments to the Sentencing Guidelines regarding the
offense levels for crack cocaine, he should file a motion under 18
U.S.C. § 3582(c)(2) (2000) with the district court. United
States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
This court will affirm a sentence imposed by the district
court if it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
The court reviews Nevels’ sentence under a deferential abuse-of-
discretion standard. See Gall v. United States, 128 S. Ct. 586,
597 (2007). The first step in this review requires the court to
ensure that the district court committed no significant procedural
error, such as improperly calculating the guideline range. United
States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128
S. Ct. 2525 (2008). In assessing a sentencing court’s application
of the Guidelines, this court reviews the court’s legal conclusions
de novo and its factual findings for clear error. United States v.
Allen, 446 F.3d 522, 527 (4th Cir. 2006).
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The court then considers the substantive reasonableness
of the sentence imposed, taking into account the totality of the
circumstances. Gall, 128 S. Ct. at 597. At this stage of review,
the court presumes that a sentence within a properly calculated
guideline range is reasonable. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007); see also Gall, 128 S. Ct. at 597 (“If the
sentence is within the Guidelines range, the appellate court may,
but is not required to, apply a presumption of reasonableness.”);
Rita v. United States, 127 S. Ct. 2456 (2007) (upholding this
court’s presumption of reasonableness).
In sentencing, the district court should first calculate
the guideline range and give the parties an opportunity to argue
for whatever sentence they deem appropriate. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The court should then
consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors
to determine whether they support the sentence requested by either
party. Id. While a district court must consider the statutory
factors and explain its sentence, it need not explicitly reference
§ 3553(a) or discuss every factor on the record, particularly when
the court imposes a sentence within a properly calculated guideline
range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). We find the sentence reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
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therefore affirm Nevels’ conviction and sentence. This court
requires counsel inform his client, in writing, of the right to
petition the Supreme Court of the United States for further review.
If he requests a petition be filed, but counsel believes 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 Nevels. 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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