United States v. Scott ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RASHAUN SCOTT, a/k/a Shaun,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(3:05-cr-00651-MBS)
Submitted: March 29, 2007 Decided: April 3, 2007
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Douglas N. Truslow, Columbia, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Columbia, South
Carolina, Leesa Washington, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashaun Scott pled guilty to possession with intent to
distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2000). The district court sentenced Scott to 188
months’ imprisonment, at the bottom of the sentencing guidelines
range. Scott appealed. Counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending there are no
meritorious issues for appeal but requesting this Court to review
the propriety of Scott’s sentence. In his pro se supplemental
brief, Scott asserts the district court improperly enhanced his
sentence based on facts not admitted by him or proven beyond a
reasonable doubt and erroneously considered the sentencing
guidelines mandatory.* The Government declined to file a
responding brief. Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), the
sentencing court must calculate the appropriate advisory guideline
range, making any necessary factual findings. The court then
should consider that range in conjunction with the 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006) sentencing factors and determine
a proper sentence. United States v. Davenport, 445 F.3d 366, 370
(4th Cir. 2006). The sentence must be within the statutorily
*
Scott also alleges ineffective assistance of counsel. This
claim is not cognizable on appeal because ineffective assistance
does not conclusively appear on the record. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
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prescribed range and reasonable. United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005) (citations omitted). A sentence within
the properly calculated guidelines range is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). In light of these
principles, we find no error in Scott’s sentencing.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Scott’s conviction and sentence. This court
requires that counsel inform Scott, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Scott 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 Scott.
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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