United States v. Clifton Barnes ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4109
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CLIFTON BARNES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)
Submitted: November 30, 2012 Decided: February 12, 2013
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, 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Unpublished opinions are not binding precedent in this circuit.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:
Clifton Barnes appeals from the district court’s
judgment after re-sentencing upon remand from this court. This
court reversed Barnes’s felon in possession of a firearm
conviction and vacated his sentence for possession with intent
to distribute cocaine base and aiding and abetting the same, in
violation of 21 U.S.C. § 841(b)(1)(C) (2006). The court’s
decision was based on United States v. Simmons, 649 F.3d 237(4th Cir. 2011). In accordance with Anders v. California, 386
U.S. 738 (1967), Barnes’s attorney has filed a brief certifying
that there are no meritorious issues, but questioning whether
the 121-month sentence on remand was properly calculated.
Barnes filed a pro se supplemental brief also challenging his
sentence. We affirm.
First, we review Barnes’s sentence for reasonableness,
applying a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 52 (2007). We begin by reviewing
the sentence for significant procedural error, including
improper calculation of the Guidelines range, failure to
consider sentencing factors under 18 U.S.C. § 3553(a) (2006),
sentencing based on clearly erroneous facts, or failure to
adequately explain the sentence imposed. Id. at 51. Only if we
find a sentence procedurally reasonable can we consider
substantive reasonableness. United States v. Carter, 564 F.3d
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325, 328 (4th Cir. 2009). Here, Barnes’s within-Guidelines
sentence is presumed reasonable, United States v. Susi, 674 F.3d
278, 289 (4th Cir. 2012), and we find no procedural or
substantive error in its imposition.
We have also considered Barnes’s sentencing issues
raised in his pro se supplemental brief. He contends first that
the district court judge constructively amended the indictment
by finding a drug quantity at sentencing that would have placed
him in the penalty provision of 21 U.S.C. § 841(b)(1)(B) (2006),
had that quantity been charged in the indictment. Barnes was
convicted under § 841(b)(1)(C), with that section’s minimum and
maximum sentences applicable because the Government did not
charge a quantity in the superseding indictment. At the
re-sentencing, the district court patiently answered Barnes’s
questions about sentencing under § 841(b)(1)(C) and explained
that the statutory penalties are different from the Guidelines
determination regarding drug amount. Barnes was sentenced based
on the drug quantity found at sentencing, and the sentence is
below the statutory maximum sentence for a § 841(b)(1)(C)
offense. Therefore, there was no error.
Barnes also argues that, because the superseding
indictment did not specify drug quantity, he should only be
sentenced based on powder cocaine because he was not aware that
the other substances were crack cocaine. He states that
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although he admitted to the crack cocaine offense, it was only
because everyone involved in the case told him it was crack. We
conclude that the district court did not err in calculating the
drug types and quantity attributable to Barnes. The record
supports the district court’s determination.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Barnes’s new sentence. This court requires
that counsel inform Barnes, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Barnes 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
Barnes.
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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