United States v. Rico Titus , 581 F. App'x 305 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4012
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICO DEMORRIS TITUS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00205-TDS-1)
Submitted: August 15, 2014 Decided: August 21, 2014
Before KING, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:
Rico Demorris Titus appeals the seventy-six-month
sentence imposed by the district court after he pled guilty to
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2012). Titus’ counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that he
has found no meritorious grounds for appeal but questioning
whether the sentence imposed is substantively reasonable. Titus
has filed a pro se supplemental brief challenging the district
court’s calculation of his offense level and criminal history
category under the Sentencing Guidelines. We affirm.
We review a sentence for reasonableness, applying “a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider, among other things,
whether the district court properly calculated the advisory
Guidelines range. Id.Titus first questions whether the district court erred
by assessing one criminal history point for a prior conviction
that he claims did not occur. Because Titus did not object to
the calculation of his criminal history below, this claim is
reviewed for plain error. See Henderson v. United States, 133
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S. Ct. 1121, 1126-27 (2013) (discussing standard of review);
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (same).
Based on this record, we conclude that Titus has failed to show
that the district court’s consideration of the challenged
conviction was plain error. See United States v Slade, 631 F.3d
185, 188 (4th Cir. 2011) (“The defendant bears the burden of
establishing that the information relied upon by the district
court — here the [presentence report] — is erroneous.”).
Nor do we find error — plain or otherwise — in the
district court’s imposition of a four-level enhancement for
possession of a firearm in connection with another felony
offense under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B)
(2012). The district court found that Titus’ possession of 3.48
grams of crack cocaine divided and wrapped in five individual
packages constituted a drug trafficking offense. Because
officers found the firearm in Titus’ backpack “in close
proximity” to the cocaine base found on his person at the time
of his arrest, the district court did not err in imposing this
enhancement. See id. & cmt. n.14(B)(ii).
Counsel questions whether the sentence imposed was
substantively reasonable. A within-Guidelines sentence, like
the one the district court imposed on Titus, is presumed
reasonable on appeal, United States v. Susi, 674 F.3d 278, 289
(4th Cir. 2012), and the defendant bears the burden to “rebut
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the presumption by demonstrating that the sentence is
unreasonable when measured against the [18 U.S.C.] § 3553(a)
[(2012)] factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
Having reviewed the record and the explanation given by the
district court, we conclude that Titus has not shown that his
sentence is substantively unreasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious grounds for appeal and have found
none. Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform Titus, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Titus 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 Titus. 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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