United States v. Divine , 174 F. App'x 760 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4860
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREEDOM BORN DIVINE, a/k/a Rico Rivers,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-03-606)
Submitted: March 20, 2006 Decided: April 6, 2006
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, L.L.P., Columbia, South
Carolina, for Appellant. Stacey Denise Haynes, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Freedom Born Divine of possession of
firearms and ammunition by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000), and the district court sentenced him to
a 120-month sentence. We affirmed Divine’s conviction but vacated
his sentence and remanded for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Divine, 131 F. App’x 959 (4th Cir. 2005) (No. 04-4459). On remand,
the district court sentenced Divine to 120 months of imprisonment.
Divine’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), questioning whether the district court should
have applied a beyond a reasonable doubt standard at sentencing to
find that the offense involved a certain number of firearms and
that Divine possessed the firearms in connection with another
felony offense and whether Divine’s sentence is reasonable, in
light of this court’s statement in our prior opinion that the
maximum sentence authorized by the jury verdict was ninety-six
months. Divine has filed pro se supplemental briefs challenging
his conviction and sentence. We affirm.
Counsel suggests that the district court erred by
applying a preponderance of the evidence standard in determining
the advisory sentencing guideline range. We disagree. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005) (stating that
“remedial portion of Booker held that decisions about sentencing
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factors will continue to be made by judges, on the preponderance of
the evidence, an approach that comports with the [S]ixth
[A]mendment so long as the guideline system has some flexibility in
application”). Moreover, our review of the record convinces us
that the sentence is reasonable. See United States v. Green, 436
F.3d 449, 457 (4th Cir. 2006) (“[A] sentence imposed within the
properly calculated Guidelines range . . . is presumptively
reasonable.”) (internal quotation marks and citation omitted).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.*
Accordingly, we affirm. 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
*
With regard to Divine’s challenges to his conviction, we find
that those issues are foreclosed by the mandate rule. See
Invention Submission Corp. v. Dudas, 413 F.3d 411, 414-15 (4th Cir.
2005) (discussing mandate rule), cert. denied, 126 S. Ct. 1024(2006).
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