United States v. Craig , 194 F. App'x 171 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LENNY LEE CRAIG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-04-250)
Submitted: June 22, 2006 Decided: August 14, 2006
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, DENZIL H. FORRESTER ATTORNEY AT LAW,
Charlotte, North Carolina, for Appellant. Kimlani S. Murray,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lenny Lee Craig pled guilty pursuant to a written plea
agreement to conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1) (2000). The district court sentenced Craig to 84 months’
imprisonment, five years of supervised release, and ordered payment
of a $100 statutory assessment.* Craig’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal, but questioning
whether the sentence imposed was reasonable and asserting
prosecutorial misconduct. Craig was given an opportunity to file
a pro se brief, and has raised one issue. Finding no reversible
error, we affirm.
After the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), a sentencing court should determine
the sentencing range under the guidelines, consider the other
factors under 18 U.S.C. § 3553(a) (2000), and impose a reasonable
sentence within the statutory maximum. See United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). We will affirm a
post-Booker sentence if it is both reasonable and within the
*
The probation officer calculated a sentencing guideline range
of 120 to 137 months’ imprisonment. This calculation was founded
on an adjusted offense level of 25, and a criminal history category
of VI. At sentencing, the government moved for downward departure
pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (2004), which
modified Craig’s base offense level to 22, with an attendant
revised guideline range of 84 to 105 months’ imprisonment.
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statutorily prescribed range. See United States v. Green, 436 F.3d
449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006) (finding
sentence imposed within properly calculated advisory guidelines
range to be presumptively reasonable).
Here, the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Craig only after considering the
factors set forth in § 3553(a). Based on these factors, and
because the court sentenced Craig within the applicable guideline
range and the statutory maximum, we find that Craig’s sentence of
84 months’ imprisonment is reasonable.
Craig’s final contention, by counsel, is that the
prosecutor should have sought an even greater downward departure,
given the danger to which Craig and his family were exposed during
the period of cooperation. As he candidly admits, his claims are
wanting for statutory or case law support. Given that the
government was not obligated under the plea agreement to file a
departure motion with any specific reduction, and given the absence
of unconstitutional or other suspect motive or bad faith by the
government, Craig’s claim fails.
Craig, pro se, asserts error in his presentence
investigation report when the probation officer assessed him two
points in his criminal history pursuant to USSG § 4A1.1(d), for
committing the instant offense while Craig was on supervised
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probation. Even assuming, arguendo, that this two-point assessment
was in error, it had no effect on Craig’s sentencing, as he still
would have qualified for a criminal history category of VI, even
without the disputed two points. Hence, his claim has no merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Craig’s conviction and sentence. We
deny counsel’s motion for permission to withdraw as counsel at this
juncture. 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 in 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 are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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