United States v. Moore , 282 F. App'x 294 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENE ELWOOD MOORE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (7:05-cr-00043-FL)
Submitted: June 26, 2008 Decided: June 30, 2008
Before KING and DUNCAN, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
William Lee Davis, III, Lumberton, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Gene Elwood Moore, Jr.,
pled guilty to possessing a firearm after having been convicted of
a felony, in violation of 18 U.S.C. § 922(g)(1) (2000). The
district court sentenced Moore to 120 months of imprisonment, the
statutory maximum sentence. Moore’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that, in his view, there are no meritorious issues for
appeal. Counsel notes that there was no error in the plea
colloquy, see Fed. R. Crim. P. 11, and that Moore waived the right
to appeal his sentence in the plea agreement.* Moore was informed
of his right to file a pro se supplemental brief but has not done
so. We affirm.
Counsel raises as a potential issue the adequacy of the
plea hearing but does not specify any deficiencies in the district
court’s Rule 11 inquiries. Our careful review of the record
convinces us that the district court fully complied with the
mandates of Rule 11 in accepting Moore’s guilty plea and ensured
that Moore entered his plea knowingly and voluntarily and that the
plea was supported by an independent factual basis. See United
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
*
Because the Government has not asserted the waiver on appeal,
we do not enforce it. See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed in
case with appeal waiver, Government’s failure to respond “allow[s]
this court to perform the required Anders review”).
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With regard to Moore’s sentence, the district court
properly calculated the guideline range of 140-175 months and found
that, because that range was higher than the statutory maximum
sentence of 120 months, see 18 U.S.C.A. § 924(a)(1) (West 1999 &
Supp. 2008), the statutory maximum sentence became the guideline
range. See U.S. Sentencing Guidelines Manual § 5G1.1(a) (2005).
We find no abuse of discretion in the district court’s imposition
of a sentence of 120 months. See Gall v. United States, 128 S. Ct.
586, 596-97 (2007) (discussing standard of review).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. 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
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