United States v. Fludd ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5018
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MACK A. FLUDD, JR., a/k/a Dale T. Boutwell,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-02-832-SB)
Submitted: July 25, 2007 Decided: August 17, 2007
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant.
John Charles Duane, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Mack A. Fludd, Jr., was convicted
on twenty-four counts of aiding and abetting others in making false
statements in connection with the purchase of firearms, in
violation of 18 U.S.C. §§ 2, 922(a)(6), 924(a)(2) (2000), fourteen
counts of possession of firearms by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), and 18 U.S.C.A.
§ 924(e) (West 2000 & Supp. 2007), one count of engaging in the
business of firearms dealing without a license, in violation of 18
U.S.C. § 922(a)(1)(A) (2000), and 18 U.S.C.A. § 924(a)(1)(D) (West
2000 & Supp. 2007), and one count of traveling interstate with the
intent to engage in the business of firearms dealing without a
license, in violation of 18 U.S.C.A. § 924(n) (West 2000 & Supp.
2007). The district court sentenced Fludd to 292 months’
imprisonment. Fludd timely appealed.
Fludd’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning whether
Fludd’s sentence violates United States v. Booker, 543 U.S. 220(2005), because the facts upon which the guideline range was
calculated were not admitted by Fludd or proven beyond a reasonable
doubt. Additionally, Fludd’s counsel questions whether the
district court erred by denying Fludd’s objections to the
presentence report (“PSR”). Counsel states, however, that he has
found no meritorious grounds for appeal. Fludd filed a pro se
supplemental brief asserting additional claims. Finding no
meritorious grounds for appeal, we affirm.
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After Booker, a district court is no longer bound by the
range prescribed by the sentencing guidelines. United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a
sentence post-Booker, courts still must calculate the applicable
guideline range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). Contrary to Fludd’s position, even
after Booker, a court may properly make factual findings concerning
sentencing factors by a preponderance of the evidence. See United
States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). We will affirm a post-Booker sentence if it
“is within the statutorily prescribed range and is reasonable. Id.
at 433 (internal quotation marks and citation omitted). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006); see also Rita v. United States, 551 U.S. ___,
127 S. Ct. 2456 (2007) (upholding presumption of reasonableness).
Having thoroughly reviewed Fludd’s sentence and his
challenges to the PSR, we find that the district court properly
calculated Fludd’s guideline range and conclude that his sentence
is reasonable. We have also thoroughly reviewed the issues raised
in Fludd’s pro se supplemental brief and find that they do not
warrant relief. In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
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appeal. Accordingly, we affirm Fludd’s convictions and sentence.
This court requires that counsel inform Fludd, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Fludd 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 Fludd. 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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