United States v. Floyd , 306 F. App'x 820 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JECOBE ANTWAN FLOYD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00127-RJC-1)
Submitted: January 13, 2009 Decided: January 15, 2009
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Cecilia
Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Adam Christopher
Morris, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jecobe Antwan Floyd appeals his conviction and
sentence imposed for possession of a firearm by a convicted
felon. Floyd’s counsel has filed an appeal under Anders v.
California, 386 U.S. 738 (1967), raising the issue of whether
Floyd’s sentence was procedurally and substantively reasonable.
The Government declined to file a brief. Floyd has not filed a
pro se supplemental brief. Finding no error, we affirm.
Counsel raises the issue of whether the district court
committed procedural or substantive error in determining Floyd’s
sentence, but concludes that there was no sentencing error. A
sentence is reviewed for abuse of discretion with the review
encompassing both procedural soundness and substantive
reasonableness. Gall v. United States, 128 S. Ct. 586, 597
(2007). Floyd’s counsel questions whether the court erred in
failing to mention one of the sentencing factors enumerated in
18 U.S.C. § 3553(a) (2006). However, the court was not required
to list every § 3553(a) factor in fashioning Floyd’s sentence,
see United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006), cert. denied, 127 S. Ct. 3044 (2007), and the record
reflects that the court listened to Floyd’s arguments and
properly considered both the proffered evidence and the
§ 3553(a) factors.
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Next, counsel raises whether Floyd’s 52-month sentence
was greater than necessary to comply with § 3553(a). The
properly calculated Guidelines range was 46 to 57 months. A
sentence within the Guidelines range is presumptively
reasonable. The record reveals that the court considered the
§ 3553(a) factors and there is no indication that the district
court abused its discretion in fashioning the sentence.
Applying a presumption of reasonableness to the Guidelines
sentence, see United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see also Rita v. United States, 127 S. Ct. 2456, 2467-68
(2007) (upholding presumption of reasonableness for
within-Guidelines sentence), we conclude that Floyd cannot rebut
the presumption of reasonableness 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 Floyd’s conviction and sentence.
This court requires that counsel inform her 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 representation. Counsel’s motion must state that
a copy thereof was served on the client. We dispense with oral
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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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