United States v. Melvin , 208 F. App'x 261 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5250
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY WADE MELVIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-247)
Submitted: October 31, 2006 Decided: December 4, 2006
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Wade Melvin appeals his 151-month sentence
resulting from his guilty plea to unarmed bank robbery in violation
of 18 U.S.C. § 2113(a) (2000). This court previously affirmed
Melvin’s conviction on direct appeal but vacated and remanded
Melvin’s sentence in light of United States v. Booker, 543 U.S. 220(2005). See United States v. Melvin, 147 F. App’x 370 (4th Cir.
2005). In the instant appeal, Melvin's attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
certifying there are no meritorious issues for appeal, but raising
the issue of whether Melvin's sentence was unduly harsh. Melvin’s
counsel concedes the issue is foreclosed by United States v. Green,
436 F.3d 449 (4th Cir. 2006), cert. denied, 126 S. Ct. 2309 (2006).
Finding no reversible error, we affirm.
After the Supreme Court's decision in Booker, a
sentencing court is no longer bound by the range prescribed by the
Sentencing Guidelines. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005). However, in determining a sentence post-
Booker, sentencing courts are still required to calculate and
consider the guideline range as well as the factors set forth in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005). As stated in Hughes,
this court will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47. Further, this court has stated that “while we believe that
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the appropriate circumstances for imposing a sentence outside the
guideline range will depend on the facts of individual cases, we
have no reason to doubt that most sentences will continue to fall
within the applicable guideline range.” United States v. White,
405 F.3d 208, 219 (4th Cir.), cert. denied, ___ U.S. ___, 126 S.
Ct. 668 (2005). Indeed, “a sentence imposed ‘within the properly
calculated Guidelines range . . . is presumptively reasonable.’”
United States v. Green, 436 F.3d 449, 456-57 (4th Cir. 2006)
(quoting United States v. Newsom, 428 F.3d 685, 687 (7th Cir.
2005)), cert. denied, ___ U.S. ___, 126 S. Ct. 2309 (2006) (No. 05-
8986).
We find that the district court properly calculated the
guideline range and appropriately treated the guidelines as
advisory. The court sentenced Melvin only after considering and
examining the factors set forth in § 3553(a). The court also
clearly noted that it found the guidelines, “although advisory,
provide an appropriate basis for determining a sentence in this
case.” Based on these factors, and because the court sentenced
Melvin within the applicable guideline range and the statutory
maximum, we find that Melvin's sentence of 151 months of
imprisonment is reasonable.
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Pursuant to Anders, we have examined the entire record
and find no meritorious sentencing issues for appeal.*
Accordingly, we affirm Melvin'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. Accordingly, we also deny counsel's motion to
withdraw as counsel. 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
*
Because this case is back before the court after remand for
resentencing, the scope of our review is limited to sentencing
issues.
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