United States v. William Gardner , 535 F. App'x 306 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM THOMAS GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00031-GMG-DJJ-1)
Submitted: July 25, 2013 Decided: July 29, 2013
Before GREGORY, DAVIS, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William T. Rice, Martinsburg, West Virginia, for Appellant.
Robert Hugh McWilliams, Jr., Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Thomas Gardner pled guilty, pursuant to a plea
agreement, to distribution of heroin, in violation of 21 U.S.C.
§ 841(a)(1) (2006). The court sentenced Gardner as a career
offender to a below-Guidelines sentence of 120 months’
imprisonment. On appeal, 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 properly calculated the criminal history score
and whether the court properly sentenced Gardner as a career
offender. Gardner was advised of his right to file a pro se
supplemental brief, but he did not do so. We affirm.
We review Gardner’s sentence for reasonableness under
a deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 41 (2007). After reviewing the sentencing
transcript pursuant to Anders, we conclude that Gardner’s
sentence is procedurally and substantively reasonable. See id.
at 49-51 (listing factors for court to consider when determining
procedural reasonableness); United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012) (holding that below-Guidelines sentence is
presumptively reasonable); United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006) (holding that defendant bears
burden of showing “that the sentence is unreasonable when
measured against the [18 U.S.C.] § 3553(a) [(2006)] factors”
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(internal quotation marks omitted)). Notably, we conclude that
the district court correctly calculated Gardner’s criminal
history score, as the sentence for the prior robbery conviction
he challenges on appeal was imposed within fifteen years of the
commencement of Gardner’s offense. See U.S. Sentencing
Guidelines Manual § 4A1.2(e)(1) (2011). We also conclude that,
because Gardner had two prior felony convictions for crimes of
violence, the district court properly classified him as a career
offender. Id. § 4B1.1(a).
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 Gardner, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Gardner 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 Gardner.
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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