United States v. Melvin Carter , 474 F. App'x 331 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN CORTEZ CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Dever
III, District Judge. (2:10-cr-00059-D-1)
Submitted: March 9, 2012 Decided: April 12, 2012
Before MOTZ, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Melvin Cortez Carter seeks to appeal his 141-month
sentence following a guilty plea to conspiracy to commit a Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(b)(1) (2006), and
use of firearms during a crime of violence and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c), 2 (2006).
Carter’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the
district court erroneously applied a two-level sentencing
enhancement for reckless endangerment during flight, pursuant to
the U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.2 (2010).
The Government has moved to dismiss Carter’s appeal as
untimely. In criminal cases, the defendant must file the notice
of appeal within fourteen days after the entry of judgment.
Fed. R. App. P. 4(b)(1)(A). With or without a motion, upon a
showing of excusable neglect or good cause, the district court
may grant an extension of up to thirty days to file a notice of
appeal. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759
F.2d 351, 353 (4th Cir. 1985).
The district court entered judgment on August 5, 2011,
and the fourteen-day appeal period expired on Friday, August 19,
2011. The district court received Carter’s notice of appeal on
August 23, four days outside the appeal period. However,
Carter’s pro se notice of appeal is dated August 18, 2011, and
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the envelope is postmarked August 19, 2011, by the inmate mail
system. Although Carter was represented by counsel at the time,
he nonetheless receives the benefit of the mailbox rule
announced in Houston v. Lack, 487 U.S. 266 (1988), as he filed
his notice of appeal pro se while incarcerated. See United
States v. Moore, 24 F.3d 624, 625-26 (4th Cir. 1994) (applying
mailbox rule to a pro se notice of appeal filed by incarcerated
petitioner represented by counsel). As Carter handed his notice
of appeal to prisoner officials for mailing on August 19 at the
latest, his notice of appeal was timely filed. We therefore
deny the Government’s motion to dismiss.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 47, 51 (2007). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Id.; see United States v. Layton, 564 F.3d 330, 335 (4th Cir.
2009). In determining the procedural reasonableness of a
sentence, we consider whether the district court properly
calculated the Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) factors, analyzed
any arguments presented by the parties, and sufficiently
explained the selected sentence. Gall, 552 U.S. at 51. This
court next assesses the substantive reasonableness of the
sentence, “taking into account the ‘totality of the
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circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court
presumes that a sentence within a properly calculated Guidelines
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
Under USSG § 3C1.2, a defendant is eligible for a two-
level sentencing enhancement if he “recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.”
In this case, Carter conspired with three other individuals to
rob several convenience stores. After the first robbery, law
enforcement officers observed Carter and his co-conspirators
casing a second convenience store the following evening. A high
speed vehicle pursuit ensued, with Carter as the driver of the
getaway vehicle. Carter drove his vehicle through two stop
signs and residential neighborhoods, reaching speeds in excess
of 55 mph in a 35 mph zone, while armed with a loaded handgun.
On these facts, we find that the district court did not commit
procedural error in applying a two-level sentencing enhancement
for reckless endangerment during flight. In addition, the court
used the correct advisory Guidelines range, explained its
reasoning, considered the § 3553(a) factors, and sentenced
Carter below the applicable Guidelines range. Accordingly, we
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conclude that Carter’s sentence was both procedurally and
substantively sound.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Carter, in writing, of his right to petition the
Supreme Court of the United States for further review. If
Carter requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Carter. 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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