United States v. Dawkins ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL JERRIS DAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-302)
Submitted: November 23, 2005 Decided: January 3, 2006
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa Blue Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Jerris Dawkins pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C.A. §§ 922(g)(1),
924(a)(2) (West 2000 & Supp. 2005). He was sentenced to sixty-four
months of imprisonment, to be followed by three years of supervised
release.
On appeal, Dawkins’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and moved to withdraw
as counsel. Counsel states that he has found no meritorious
grounds for appeal, but asserts generally that Dawkins’s sentence
is unduly harsh. Dawkins raises four sentencing issues in his pro
se supplemental brief.
Dawkins complains, first, that he was given three
criminal history points for a charge that was later reduced to a
misdemeanor. As he did not preserve this issue below, we review
for plain error. See Fed. R. Crim. P. 52(b). Under the plain
error standard, Dawkins must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993). When these
conditions are satisfied, we may exercise our discretion to notice
the error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks omitted). The burden of showing
plain error is on the defendant. United States v. Strickland, 245
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F.3d 368, 379-80 (4th Cir. 2001). Here, as Dawkins makes only a
conclusory assertion of the error with no documentation to support
his claim, we hold that Dawkins does not sustain this burden.
Dawkins next complains of double counting in the
computation of his sentence. Two points were added to his criminal
history score because he was on probation at the time of the
offense, and the underlying conviction was counted to increase his
offense level. However, double counting is permissible under the
federal sentencing guidelines except where it is expressly
prohibited. United States v. Reevey, 364 F.3d 151, 158 (4th Cir.
2004); United States v. Wilson, 198 F.3d 467, 472 n.* (4th Cir.
1999). “An adjustment that clearly applies to the conduct of an
offense must be imposed unless the [g]uidelines expressly exclude
its applicability.” United States v. Williams, 954 F.2d 204, 207
(4th Cir. 1992). The district court properly followed the
guidelines’ directives in this case, and this court will not
disturb an otherwise proper application of the guidelines. See
United States v. Crawford, 18 F.3d 1173, 1180-81 (4th Cir. 1994)
(permitting “triple counting” under the guidelines).
Next, Dawkins asserts that he should not have received a
sentence enhancement because the firearm he possessed was stolen.
He contends that, under guideline Amendment 522, the USSG
§ 2K2.1(b)(4) enhancement should not be applied in certain
circumstances even if the firearm is stolen. Dawkins is entitled
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to no relief on this claim, which we review for plain error. By
its terms, the portion of the Amendment that Dawkins refers to, the
clarification to USSG § 2K1.2 comment. n.12, does not apply in this
case because Dawkins was not convicted under the provisions cited
in the commentary.
Finally, Dawkins’s supplemental brief cites to Blakely v.
Washington, 542 U.S. 296 (2004), United States v. Booker, 125 S.
Ct. 738 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). We conclude that Dawkins is entitled to no relief under
these decisions. There is no Sixth Amendment error in Dawkins’s
case, as he was sentenced after Booker, under the nonmandatory
guideline scheme. After the Supreme Court’s decision in Booker,
sentencing courts are still required to calculate and consider the
guideline range, and to consider as well the factors set forth in
18 U.S.C. § 3553(a) (2000). Hughes, 401 F.3d at 546. As stated in
Hughes, we will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47. Here, the district court looked to the guideline range,
and noted that Dawkins knew “it was a violation for you to carry
that gun. And you were out on the street.” Therefore, the court
imposed a sentence in the middle of the guideline range. Because
the district court sentenced Dawkins within the guidelines and well
within the statutory limit of ten years under 18 U.S.C.
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§ 924(a)(2), we find that the sentence is reasonable and is not
unduly harsh.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Dawkins’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 pending motion to withdraw. 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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