United States v. Trivette , 159 F. App'x 498 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES A. TRIVETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-04-16)
Submitted: October 21, 2005 Decided: December 19, 2005
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, 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Unpublished opinions are not binding precedent in this circuit.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:
Charles A. Trivette appeals the 120-month concurrent
sentences imposed after he pled guilty to possession with intent to
distribute methamphetamine (Count 1), in violation of 21 U.S.C.
§ 841(a)(1) (2000), and to being a felon in possession of a firearm
(Count 3), in violation of 18 U.S.C. § 922(g)(1) (2000).*
Trivette’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), raising two issues but stating that, in his
view, there are no meritorious issues for appeal. Trivette was
informed of his right to file a pro se supplemental brief but has
not done so. We affirm.
Counsel questions the reasonableness of Trivette’s
sentence in light of United States v. Booker, 125 S. Ct. 738(2005). Although the Sentencing Guidelines are no longer
mandatory, Booker makes clear that a sentencing court “must consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767 (Breyer, J., opinion of the Court). The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
then impose a sentence. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005) (applying Booker on plain error review). The
*
Trivette also pled guilty to using and carrying a firearm
during and in relation to a drug trafficking crime, in violation of
18 U.S.C.A. § 924(c) (West 2000 & Supp. 2005), and received a
sixty-month consecutive sentence. He does not challenge this
portion of his sentence in this appeal.
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sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47 (citations omitted).
In sentencing Trivette to a 120-month sentence, a
sentence one month below the properly calculated Sentencing
Guidelines range of 121 to 151 months of imprisonment, the district
court considered that range and all of the factors in § 3553(a),
taking into account the ten-year mandatory minimum statutory
sentence on Count 1, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &
Supp. 2005), and the ten-year statutory maximum sentence on
Count 3, see 18 U.S.C. § 924(a)(2) (2000). Our review of the
record leads us to conclude that the district court adequately
explained its reason for sentencing Trivette below the advisory
Sentencing Guidelines range. We therefore find that the sentence
is reasonable.
Counsel also questions whether the Government engaged in
prosecutorial misconduct when it failed to file a motion for a
downward departure under U.S. Sentencing Guidelines Manual § 5K1.1,
p.s. (2004), based upon Trivette’s substantial assistance. The
Government did not promise to make such a motion, and there is no
evidence that it refused to make the motion based upon an improper
motive. Wade v. United States, 504 U.S. 181, 185-86 (1992). We
therefore find nothing improper regarding the Government’s failure
to make the motion.
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found
none. Accordingly, we affirm Trivette’s conviction and sentence.
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 deny counsel’s motion to withdraw and
Trivette’s motion to substitute counsel and 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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