United States v. Brian Sellars , 520 F. App'x 178 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4681
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN KEITH SELLARS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00243-TDS-1)
Submitted: April 25, 2013 Decided: April 30, 2013
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Keith Sellars appeals the 135-month sentence
imposed following this court’s remand for resentencing, pursuant
to United States v. Simmons, 649 F.3d 237 (4th Cir. 2010) (en
banc). On appeal, Sellars’ counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious grounds for appeal but questioning whether
the district court’s sentence on remand was reasonable. Sellars
has filed a pro se supplemental brief in which he alleges
ineffective assistance of counsel, that the district court made
numerous errors when determining his relevant conduct, and that
the court failed to comply with applicable forfeiture
procedures. Finding no error, we affirm.
The sole issue raised in the Anders brief is whether
Sellars’ sentence on remand was reasonable. In reviewing a
sentence, we must first ensure that the district court did not
commit any “significant procedural error,” such as failing to
properly calculate the applicable Guidelines range, failing to
consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to
adequately explain the sentence. Gall v. United States, 552
U.S. 38, 51 (2007). Once we have determined that there is no
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Id. If the sentence imposed is
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within the appropriate Guidelines range, we consider it
presumptively reasonable. United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008). The presumption may be rebutted by a
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) (internal quotation marks
omitted). Upon review, we conclude that the district court
committed no procedural or substantive error in imposing the
135-month sentence on remand. United States v. Lynn, 592 F.3d
572, 577 (4th Cir. 2010) (providing standard of review).
We have considered Sellars’ pro se arguments and, in
accordance with Anders, we have reviewed the record in this
case. Our review has revealed no meritorious issues for appeal.
We therefore deny Sellars’ motion to appoint counsel and affirm
the district court’s second amended judgment. This court
requires that counsel inform Sellars, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Sellars 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 Sellars. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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