United States v. Brewer , 284 F. App'x 52 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4779
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONARD HABERN BREWER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:06-cr-00019-jpj)
Submitted: June 6, 2008 Decided: June 30, 2008
Before MICHAEL and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gregory M. Stewart, Norton, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonard Habern Brewer pled guilty to conspiracy to
distribute oxycodone and possess oxycodone with intent to
distribute, in violation of 21 U.S.C.A. § 846 (West 1999 & Supp.
2008). The district court properly calculated an advisory
sentencing range of 151 to 188 months’ imprisonment, and imposed a
sentence of 180 months’ incarceration, to be followed by five years
of supervised release. Brewer timely appeals, and his counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), questioning whether the sentence was reasonable, but
ultimately concluding there are no meritorious issues for review.
Brewer was advised of his right to file a pro se supplemental
brief, but he has not done so. Finding no error, we affirm.
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see
also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
When sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) treat the guidelines as
advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008); and (4) explain its reasons for selecting
a sentence. Pauley, 511 F.3d at 473. We presume that a sentence
within the properly calculated sentencing guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
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2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding appellate court’s presumption of reasonableness
for sentences within the guidelines). This presumption can only be
rebutted by showing that the sentence is unreasonable when measured
against the § 3553(a) factors. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006), cert. denied, 127 S. Ct. 3044(2007).
The district court followed the necessary steps in
sentencing Brewer, and we find no abuse of discretion in the
sentence of 180 months of imprisonment. Moreover, the district
court adequately explained its denial of Brewer’s request for a
downward departure or variance, relying upon Brewer’s extensive
criminal history, as well as his selling drugs to others, feeding
their addictions as well as his own. We have reviewed the record
in this case in accordance with Anders and have found no
meritorious issues for appeal. We therefore affirm Brewer’s
conviction and sentence.
This court requires that counsel inform Brewer, in
writing, of the right to petition the Supreme Court of the United
States for further review. Accordingly, we deny counsel’s motion
to withdraw at this juncture. If Brewer requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, counsel may then move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
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copy thereof was served on Brewer. 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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