United States v. Yarborough , 210 F. App'x 233 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JESSIE YARBOROUGH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (8:05-cr-00809-GRA-2)
Submitted: November 20, 2006 Decided: December 18, 2006
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. W. Walter Wilkins, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jessie Yarborough pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to possess with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C.A. §§ 846, 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2006)
(Count Two); and one count of 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 Supp. 2006) (Count Four). The plea
agreement included a stipulation that the “quantity of cocaine
involved is 1 kilogram of cocaine with a base offense level of 26
for purposes of calculating the Defendant’s sentence pursuant to
the United States Sentencing Commission Guidelines.”
In determining the sentencing range under the Sentencing
Guidelines* for Count Two, the probation officer recommended a base
offense level of twenty-six pursuant to USSG § 2D1.1(c)(7), based
on the plea agreement stipulation. After a two-level reduction for
acceptance of responsibility, Yarborough’s total offense level for
Count Two was twenty-four. Yarborough’s prior criminal activity
resulted in a total of eleven criminal history points, placing him
in criminal history category V. The resulting sentencing range for
Count Two was ninety-two to 115 months. Count Four carried a
mandatory minimum of five years of imprisonment, consecutive to the
sentence on Count Two. Yarborough did not object to the
*
U.S. Sentencing Guidelines Manual (2004) (USSG).
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presentence report (PSR). At sentencing the district court adopted
the factual findings and Guideline calculations in the PSR. The
court noted its consideration of the advisory Guidelines range and
the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and
sentenced Yarborough to ninety-two months of imprisonment on Count
Two and a consecutive sixty months of imprisonment on Count Four,
for a total of 152 months of imprisonment, four years of supervised
release, and a $200 special assessment. Yarborough timely
appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal, but questions whether the district
court erred in imposing a sentence of 152 months. Yarborough filed
a pro se supplemental brief asserting two allegations of error.
The Government declined to file a brief.
Counsel suggests that the district court erred in
imposing a sentence of 152 months of imprisonment. We review a
district court’s sentence for reasonableness. United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). “Consistent with the
remedial scheme set forth in Booker, a district court shall first
calculate (after making the appropriate findings of fact) the range
prescribed by the guidelines.” Id. at 546. Counsel does not
assert that the district court erred in determining the applicable
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Guideline range, and Yarborough’s offense level was determined
based on the stipulation in the plea agreement.
Next, the district court must consider the Guideline
range in conjunction with other relevant factors under the
Guidelines and § 3553(a), and impose a sentence. “A sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341-42 (4th
Cir. 2006). If a court imposes a sentence outside the Guideline
range, the court must state its reasons for doing so. Hughes, 401
F.3d at 546. The sentence must be “within the statutorily
prescribed range and . . . reasonable.” Id. at 546-47 (citations
omitted). Yarborough’s guilty plea to a drug conspiracy involving
500 or more grams of cocaine exposed him to a statutory sentence of
at least five and not more than forty years, 21 U.S.C.A.
§ 841(b)(1)(B); and his plea to using and carrying a firearm during
and in relation to a drug trafficking crime carried a statutory
minimum consecutive sentence of five years. 18 U.S.C.A. § 924(c).
In this case the district court calculated the Guideline
range and specifically stated that it considered the advisory
Guidelines pursuant to § 3553 before imposing sentence. “The
district court need not discuss each factor set forth in § 3553(a)
‘in checklist fashion’; ‘it is enough to calculate the range
accurately and explain why (if the sentence lies outside it) this
defendant deserves more or less.’” United States v. Moreland, 437
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F.3d 424, 432 (4th Cir.)(quoting United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005)), cert. denied, 126 S. Ct. 2054 (2006).
Yarborough’s sentence was within the properly calculated
Guideline range and did not exceed the statutory maximum. Our
review leads us to conclude that Yarborough’s “sentence was
selected pursuant to a reasoned process in accordance with law, in
which the court did not give excessive weight to any relevant
factor, and which effected a fair and just result in light of the
relevant facts and law.” United States v. Green, 436 F.3d 449, 457
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We have considered the arguments raised in Yarborough’s
pro se supplemental brief and find them to be without merit. We
therefore affirm Yarborough’s conviction and sentence. This court
requires that counsel inform Yarborough, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Yarborough 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 Yarborough. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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