United States v. Roger Wesley , 534 F. App'x 211 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5028
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER BERNARD WESLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00202-NCT-1)
Submitted: July 12, 2013 Decided: July 23, 2013
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Bernard Wesley appeals his conviction and
110-month sentence imposed following his guilty plea to
possession of a firearm as a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). On appeal, Wesley’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious issues for appeal
but questioning whether the district court committed two
sentencing errors. The Government has filed a response brief,
asserting that the district court committed no error and that we
lack authority to review one of the issues raised. Wesley has
filed a pro se supplemental brief raising a claim under
Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2155
(2013) (holding that any fact increasing the mandatory minimum
sentence applicable to an offense must be submitted to the jury
and found beyond a reasonable doubt). For the reasons that
follow, we affirm.
We review a sentence imposed by a district court for
reasonableness. Gall v. United States, 552 U.S. 38, 46, 51
(2007). We first examine the sentence for “significant
procedural error,” including improper calculation of the
Guidelines range. Id. at 51. In assessing Guidelines
calculations, we “review the [sentencing] court’s factual
findings for clear error, its legal conclusions de novo, and
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unpreserved arguments for plain error.” United States v.
Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (citations omitted).
If we find the sentence procedurally reasonable, we also examine
its substantive reasonableness under the totality of the
circumstances. Gall, 552 U.S. at 51. A within-Guidelines
sentence is presumptively reasonable, and the defendant bears
the burden to rebut this presumption by demonstrating “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).
Counsel first questions whether the district court
inappropriately applied a four-level enhancement for use or
possession of a firearm “in connection with another felony
offense,” pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(b)(6)(b) (2011). Because Wesley withdrew his objection
on this ground in the district court, we review the issue for
plain error. See Strieper, 666 F.3d at 292.
A firearm is “used or possessed in connection with
another offense if [it] facilitates or has a tendency to
facilitate the other offense.” United States v. Hampton, 628
F.3d 654, 663 (4th Cir. 2010) (internal quotation marks and
alteration omitted); see USSG § 2K2.1 cmt. n. 14(A). “This
requirement is satisfied if the firearm had some purpose or
effect with respect to the other offense, including if the
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firearm was present for protection or to embolden the actor.”
United States v. Alvarado Perez, 609 F.3d 609, 612-13 (4th Cir.
2010) (internal quotation marks and alterations omitted). The
Guidelines commentary further explains that the enhancement is
appropriate “in the case of a drug trafficking offense in which
a firearm is found in close proximity to drugs,
drug-manufacturing materials, or drug paraphernalia.” See USSG
§ 2K2.1 cmt. n. 14(B). Based on the facts admitted in the
written factual basis for Wesley’s plea and adopted in the
presentence report, we discern no error, plain or otherwise, in
the court’s application of this enhancement to Wesley. *
Counsel next questions whether the district court
should have considered imposing a lower sentence because the
three-level downward adjustment to his Guidelines range for
acceptance of responsibility, for which he bargained in his plea
agreement, had little impact on his Guidelines range due to the
statutory cap of 120 months applicable to his sentence. We find
*
In his pro se supplemental brief, Wesley also challenges
this enhancement under the Supreme Court’s recent decision in
Alleyne. Because neither the enhancement nor its underlying
facts had an impact on the statutory sentencing range applicable
to Wesley’s offense, we conclude, without difficulty, that
Wesley’s argument is meritless. See Alleyne, 133 S. Ct. at 2163(“Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long
recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment.”).
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this argument unavailing. Initially, Wesley cannot claim that
he did not benefit from the acceptance of responsibility
adjustment; but for that adjustment, Wesley would have been
subject to a Guidelines range higher than the sentence he
received. Because he received a sentence at the bottom of his
applicable Guidelines range, Wesley effectively argues that the
court erred in failing to depart below the Guidelines range
based on the statutory cap. However, we lack authority to
review the court’s decision not to depart downward, as nothing
in the record indicates that “the court failed to understand its
authority to do so.” See United States v. Brewer, 520 F.3d 367,
371 (4th Cir. 2008). Nor do we conclude that Wesley’s assertion
serves to rebut the presumption of substantive reasonableness
accorded his within-Guidelines sentence. See Montes-Pineda, 445
F.3d at 379.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Wesley, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Wesley 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
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representation. Counsel’s motion must state that a copy thereof
was served on Wesley.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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