United States v. Smith , 304 F. App'x 218 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4298
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUBORN FRANK SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry F. Floyd, District Judge.
(8:07-cr-00400-HFF-1)
Submitted: December 16, 2008 Decided: December 22, 2008
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Leesa Washington, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Auborn Frank Smith appeals from his conviction and
180-month sentence imposed following his guilty plea to
possession of a firearm by a convicted felon. Smith’s attorney
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), addressing the validity of the plea and the
reasonableness of the sentence, but stating that there was no
merit to the appeal. Smith was advised of his right to file a
pro se supplemental brief, but has not done so. Our review of
the record discloses no reversible error; accordingly, we affirm
Smith’s conviction and sentence.
We find that Smith’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Smith was properly advised of his rights, the
offense charged, and the mandatory minimum and the maximum
sentence for the offense. The court also determined that there
was an independent factual basis for the plea and that the plea
was not coerced or influenced by any promises. See United
States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
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:
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(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. 2007); see also Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
application of rebuttable presumption of correctness of within
guideline sentence).
Here, the district court imposed a variance sentence
of 180 months, which was below the advisory guideline range.
Because the district court adequately explained the bases for
the variance and because the amount of the variance was
reasonable, we find no abuse of discretion in the sentence of
180 months of imprisonment.
As required by Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Smith’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
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withdraw from 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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