United States v. McRae , 259 F. App'x 565 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4422
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN MCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00016-CCB)
Submitted: November 14, 2007 Decided: December 21, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Michael T. CitaraManis,
Assistant Federal Public Defender, Sherri Keene, Staff Attorney,
Greenbelt, Maryland, for Appellant. Christopher John Romano,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin McRae pled guilty pursuant to a written plea
agreement to attempting to possess with intent to distribute
heroin, in violation of 21 U.S.C. § 846 (2000). McRae was
sentenced, in accordance with the terms of his plea agreement, to
108 months’ imprisonment. Finding no error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but addressing whether McRae
knowingly and intelligently waived his right to appeal. Counsel
also addresses the reasonableness of McRae’s sentence. McRae was
notified of his right to file a pro se supplemental brief, but did
not do so, and the Government elected not to file a responsive
brief.
Initially, McRae challenges the voluntariness of the
appellate waiver provision in his plea agreement. However, because
the Government has not sought to enforce the waiver, see United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007), we need
not address this issue. Our review of the transcript of McRae’s
guilty plea hearing confirms that the court complied with Fed. R.
Crim. P. 11.
McRae also contends his sentence is unreasonable.
However, the district court appropriately treated the Sentencing
Guidelines as advisory, properly calculated and considered the
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advisory guideline range, and weighed the relevant 18 U.S.C.
§ 3553(a) (2000) factors. See United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). McRae’s 108-month sentence, which is
within the applicable guideline range and below the statutory
maximum, is therefore presumptively reasonable. See United States
v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006); see also Rita v. United States, 127 S. Ct. 2456,
2462-65 (2007) (approving presumption of reasonableness accorded
sentences within properly calculated guideline range). We discern
no basis in this case to find that the presumption of
reasonableness has been overcome. Moreover, McRae’s sentence
comports with the terms of his plea agreement.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the conviction and sentence. We
deny counsel’s motion to withdraw. This court requires that
counsel inform his 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 this
court for leave to 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
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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