United States v. McCaskill , 238 F. App'x 910 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4714
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMION MCCASKILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-00471-TLW-AL)
Submitted: April 30, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas G. Nessler, Jr., Surfside Beach, South Carolina, for
Appellant. Jonathan Scott Gasser, Assistant United States
Attorney, Columbia, South Carolina, Arthur Bradley Parham, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damion McCaskill appeals his sentence to 180 months in
prison and seven years of supervised release after pleading guilty
to one count of conspiracy to distribute fifty grams or more of
cocaine base and a quantity of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), 846 (2000), and one count
of possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A) (2000).
McCaskill’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion, there
are no meritorious grounds for appeal but raising the issues of
whether the district court complied with Fed. R. Crim. P. 11 in
taking McCaskill’s guilty plea and whether his sentence is
reasonable. The Government has not filed an answering brief.
McCaskill was advised of his right to file a pro se supplemental
brief but has not done so. We affirm.
Appellate counsel first questions whether the district
court complied with Fed. R. Crim. P. 11 in accepting McCaskill’s
guilty plea, but he alleges no error by the district court and
concludes the court fully complied with the rule. Since McCaskill
did not move in the district court to withdraw his guilty plea, we
review any challenge to the adequacy of the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
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Cir. 2002). We have reviewed the record and find no plain error in
the district court’s acceptance of McCaskill’s guilty plea.
Appellate counsel next questions whether McCaskill’s
sentence is reasonable, but he alleges no error by the district
court and concludes the sentence is “clearly reasonable.” We will
affirm a sentence imposed by the district court as long as it is
within the statutorily prescribed range and reasonable. United
States v. Hughes, 401 F.3d 540 (4th Cir. 2005). A sentence may be
unreasonable for both substantive and procedural reasons. United
States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006). An error of law or fact can render a sentence
unreasonable. United States v. Green, 436 F.3d 449, 456 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006).
In sentencing a defendant, the district court must:
(1) properly calculate the guideline range; (2) determine whether
a sentence within that range serves the factors under 18 U.S.C.
§ 3553(a) (2000); (3) implement mandatory statutory limitations;
and (4) explain its reasons for selecting the sentence. Id. at
455-56. In considering whether the sentence is unreasonable, we
review the district court’s factual findings for clear error and
its legal conclusions de novo. United States v. Hampton, 441 F.3d
284, 287 (4th Cir. 2006). Issues that are not raised in the
district court are reviewed for plain error. Hughes, 401 F.3d at
547.
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We have reviewed the record and conclude McCaskill’s
sentence is reasonable. McCaskill admitted he had at least one
prior conviction for a felony drug offense, subjecting him to the
mandatory minimum sentence of twenty years in prison on the
conspiracy count pursuant to 21 U.S.C. § 841(b)(1)(A) (2000). The
Government filed an information under 21 U.S.C. § 851(a)(1) (2000)
stating the prior convictions to be relied upon, and in accordance
with the parties’ plea agreement, only relied on one of them at
sentencing. McCaskill affirmed the conviction and understood he
could not later attack his sentence by challenging the conviction.
By virtue of his guilty plea, McCaskill was subject to a
mandatory consecutive sixty-month term on the firearm possession
count pursuant to 18 U.S.C. § 924(c) (2000); U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.4(b) (2004). Because his initial
guideline range on the conspiracy count was lower than the
mandatory statutory minimum, the court determined his guideline
sentence became 240 months and his aggregate guideline sentence was
300 months. The parties agreed with the court’s calculations. The
district court implemented mandatory statutory limitations and
properly determined McCaskill’s guideline sentence.
In accordance with the plea agreement, the Government
moved for a downward departure based on substantial assistance,
representing that McCaskill’s early cooperation was extensive and
valuable. Based on the Government’s representations, the district
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court found McCaskill’s cooperation to be substantial and granted
a four-level downward departure pursuant to 18 U.S.C. § 3553(e)
(2000); USSG § 5K1.1. After the departure, the district court
found McCaskill’s aggregate guideline range was 168 to 210 months,
and the parties stated they had no objection. As to where he
should be sentenced, McCaskill argued he was a young man with a
relatively minor criminal history, notwithstanding his two prior
felony drug offenses, and he had done everything he could to
cooperate with authorities. The district court sentenced him to a
120-month prison sentence on the conspiracy count and a consecutive
sixty-month term on the firearm count. In sentencing him, the
district court noted it had considered the advisory guidelines and
the factors under 18 U.S.C. § 3553(a) (2000). The court explained
its reasons for selecting the sentence, including McCaskill’s
cooperation and his prior criminal record.
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 his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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
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representation. Counsel’s motion must state that a copy thereof
was served on the client.
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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