United States v. Gregory , 238 F. App'x 936 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL LAMAR GREGORY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-000397-HMH)
Submitted: May 23, 2007 Decided: July 10, 2007
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Lamar Gregory appeals his conviction and sentence
to seventy-seven months in prison and three years of supervised
release after pleading guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2000). Gregory’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion, there
are no meritorious grounds for appeal but raising the issues of
whether the district court complied with Fed. R. Crim. P. 11 in
taking Gregory’s guilty plea, and whether the district court
plainly erred in sentencing him to seventy-seven months in prison.
The Government has not filed an answering brief. Gregory was
advised of his right to file a pro se supplemental brief but has
not done so. Finding no reversible error, we affirm.
Appellate counsel first questions whether the district
court complied with Fed. R. Crim. P. 11 in accepting Gregory’s
guilty plea, but he alleges no error by the district court and
concludes the court fully complied with the rule. Since Gregory
did not move in the district court to withdraw his guilty plea, we
review any challenge to the adequacy of the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). We have reviewed the record and find no plain error in
the district court’s acceptance of Gregory’s guilty plea.
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Appellate counsel next questions whether the district
court plainly erred in sentencing Gregory, but he alleges no error
by the district court and concludes Gregory’s sentence at the low
end of a properly calculated sentencing range is not unreasonable.
We will affirm a sentence imposed by the district court as long as
it is within the statutorily prescribed range and reasonable.
United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). A sentence
may be unreasonable for both substantive and procedural reasons.
United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). An error of law or fact can render
a sentence unreasonable. United States v. Green, 436 F.3d 449, 456
(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
In sentencing a defendant, the district court must:
(1) properly calculate the guideline range; (2) determine whether
a sentence within that range serves the factors under 18 U.S.C.
§ 3553(a) (2000); (3) implement mandatory statutory limitations;
and (4) explain its reasons for selecting the sentence, especially
a sentence outside the range. Id. at 455-56. A sentence within a
properly calculated range is presumptively reasonable. Id. at 457.
In considering whether the sentence is unreasonable, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Hampton, 441 F.3d 284, 287
(4th Cir. 2006). Issues that are not raised in the district court
are reviewed for plain error. Hughes, 401 F.3d at 547.
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We have reviewed the record and conclude Gregory’s
sentence is reasonable. The district court determined his base
offense level was twenty. See U.S. Sentencing Guidelines Manual
(“USSG”) § 2K2.1(a)(4)(A) (2004). The court applied a four-level
enhancement under USSG § 2K2.1(b)(5) for possessing the firearm in
connection with another felony offense, and a three-level reduction
for acceptance of responsibility. With a total offense level of
twenty-one and criminal history category VI, Gregory’s advisory
guideline range was 77 to 96 months. Neither party objected to the
district court’s calculations, and Gregory’s counsel requested that
he be sentenced at the lower end of his guideline range. In
sentencing Gregory to seventy-seven months, the district court
considered the guidelines as advisory and the factors under 18
U.S.C. § 3553(a), and reasonably determined a sentence within the
guideline range was appropriate in this case.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore 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
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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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