United States v. McSwain , 288 F. App'x 890 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4165
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTAVIS ANTWANN MCSWAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00390-RJC-8)
Submitted: July 31, 2008 Decided: August 7, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Montavis Antwann McSwain appeals from his conviction and
120-month sentence imposed following his guilty plea to conspiracy
to possess with intent to distribute cocaine and cocaine base and
possession with intent to distribute cocaine base. McSwain’s
attorney filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), addressing the constitutionality of 21 U.S.C. § 841(West 1999 & Supp. 2008), and the reasonableness of the sentence,
but stating that there was no merit to the appeal. McSwain filed
a pro se brief asserting that his sentence was enhanced based on an
uncounseled juvenile conviction and requesting a reduction of his
sentence based on a recent amendment to the Sentencing Guidelines.
Our review of the record discloses no reversible error;
accordingly, we affirm McSwain’s conviction and sentence.
Initially, we note that McSwain’s challenge to the
constitutionality of § 841 has been rejected by this court. See
United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United
States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994). To the extent
that McSwain seeks to have this court reconsider its decisions, “a
panel of this court cannot overrule, explicitly or implicitly, the
precedent set by a prior panel of this court. Only the Supreme
Court or this court sitting en banc can do that.”* Scotts Co. v.
*
The recent Supreme Court decision Kimbrough v. United States,
128 S. Ct. 558 (2007) (holding that district court has discretion
to find “that the crack/powder disparity yields a sentence ‘greater
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United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002)
(internal quotation marks and citations omitted).
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); see
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When
sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) treat the guidelines as
advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008); and (4) explain its reasons for selecting
a sentence. Pauley, 511 F.3d at 473. We presume that a sentence
within the properly calculated sentencing guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)
(upholding application of rebuttable presumption of correctness of
within guideline sentence).
The district court followed the necessary steps in
sentencing McSwain, and we find no abuse of discretion in the 120-
month sentence imposed. McSwain’s challenge to the use of a
juvenile conviction to enhance his sentence is meritless. McSwain
was tried as an adult on that offense and he was represented by
counsel. Accordingly, we affirm McSwain’s sentence.
than necessary’ to achieve § 3553(a)’s purpose, even in a mine run
case”), did not find § 841's penalty provisions unconstitutional.
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McSwain also seeks a reduction in his sentence pursuant
to Amendment 706 to the sentencing guidelines, which lowered the
base offense level for drug offenses involving crack cocaine. See
U.S. Sentencing Guidelines Manual (USSG) § 2D1.1 (2007); USSG App.
C. Amend. 706. It is for the district court to first assess
whether and to what extent a criminal defendant’s sentence may be
affected by Amendment 706, either sua sponte or by motion pursuant
to 28 U.S.C.A. § 3582(c)(2) (West 2000 & Supp. 2008). United
States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm McSwain’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 renew his
motion 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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