United States v. Planter

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRYANT LAMONT PLANTER,
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-00372)
Submitted: April 19, 2007 Decided: April 23, 2007
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela Parrott, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Thomas Tullidge Cullen,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryant Lamont Planter appeals his conviction and one
hundred month sentence following his guilty plea to one count of
possessing with intent to distribute cocaine base and marijuana, in
violation of 18 U.S.C. § 841(a)(2000), and to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
922(g)(2000). Planter’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967), stating that there
were no meritorious issues for appeal, but suggesting that the
district court erred in sentencing Planter.
We find that the district court properly applied the
Sentencing Guidelines and considered the relevant sentencing
factors before imposing the one hundred month sentence. 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006); see United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Additionally, we
find that the district court’s decision to deny Planter’s request
for a variance from the guideline range was reasonable, and its
determination of the sentence within the range was reasonable. See
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006). (“[A]
sentence imposed within the properly calculated [g]uidelines range
[. . .] is presumptively reasonable.”) (internal quotation marks
and citation omitted).
Planter also challenges the use of prior convictions that
were neither admitted by him nor found by the jury, in calculating
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his criminal history category. The fact of a prior conviction need
not be proven beyond a reasonable doubt. Almendarez-Torres v.
United States, 523 U.S. 224, 233-36, 243-44 (1998); United
States v. Cheek, 415 F.3d 349, 351-54 (4th Cir.)(reaffirming
continuing validity of Almendarez-Torres after Booker), cert.
denied, 126 S. Ct. 640 (2005). Thus, the district court was not
required to make any factual findings concerning Planter’s prior
record, but could rely on “the conclusive significance” of his
record as set out in the presentence report. See Shepard v. United
States, 544 U.S. 13, 25 (2005); see also United States v. Thompson,
421 F.3d 278, 285 (4th Cir. 2005) (sentencing judge entitled to
rely on undisputed information in presentence report that “bears
the earmarks of derivation from Shepard-approved sources such as
the indictments and state-court judgments from [defendant’s] prior
convictions”), cert. denied, 126 S. Ct. 1463 (2006). We find that
the district court did not violate Planter’s Sixth Amendment rights
when it considered his prior convictions in determining his
sentence.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm the judgment of the district court. This court requires
that counsel inform her 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
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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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