United States v. Lee ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4869
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL ANTWAN LEE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:08-cr-00040-01; 7:09-cr-00007-sgw-2)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Allegra M.C. Black,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Jennie L.M.
Waering, Assistant United States Attorney, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Antwan Lee pled guilty pursuant to a written
plea agreement to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. §§ 922(g), 924(e) (2006), and
malicious damage to a building by fire, in violation of 18
U.S.C. § 844(i) (2006). He received a 168-month sentence.
Lee’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in counsel’s
opinion, there are no meritorious grounds for appeal but raising
the issues of whether Lee’s waiver of appeal rights was
effective and whether Lee’s sentence is reasonable. Lee was
notified of his right to file a pro se supplemental brief but
has not done so. Finding no reversible error, we affirm.
Counsel first challenges the enforceability of Lee’s
appellate waiver. However, the Government has not filed a
responsive brief or motion to dismiss asserting the waiver, and
we do not sua sponte enforce appellate waivers. See United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
Accordingly, we conclude this issue is moot.
We review a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error, such as improperly calculating
2
the guideline range. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51.
Lee was found to be an armed career criminal and,
accordingly, he was subject to a statutorily mandated minimum of
180 months’ imprisonment. See 18 U.S.C. § 924(e). His advisory
guidelines range was 180 to 210 months’ imprisonment. See U.S.
Sentencing Guidelines Manual (“USSG”) § 5G1.1(c)(2) (2008)
(requiring the statutorily required minimum sentence be the
minimum of the advisory guideline sentence). The Government,
however, filed a motion pursuant to USSG § 5K1.1 based on Lee’s
substantial assistance, recommending a sentence of fourteen
years’ imprisonment, a sentence below the advisory guidelines
range and below the statutory minimum. After considering the 18
U.S.C. § 3553(a) (2006) factors, the district court sentenced
Lee to fourteen years’ imprisonment. We have reviewed the
record and conclude that the district court did not abuse its
discretion in sentencing Lee and that his sentence is
reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Lee, in writing, of his
3
right to petition the Supreme Court of the United States for
further review. If Lee 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 Lee. 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