United States v. Thomas Mackey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4708
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS OTIS MACKEY, a/k/a Miami,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:10-cr-00421-JMC-1)
Submitted: February 5, 2013 Decided: February 8, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Otis Mackey appeals his conviction and sixty-
month sentence imposed after remand. Mackey pled guilty without
the benefit of a plea agreement to one count of conspiracy to
possess with intent to distribute fifty grams or more of crack
cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1) (West
1999 & Supp. 2012). Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there
are no meritorious issues but raising for the court’s
consideration whether the district court erred by ordering the
statutory minimum sentence. Mackey was informed of the
opportunity to file a pro se brief, but did not do so. The
Government did not file a brief. Finding no error, we affirm.
We have reviewed the Rule 11 hearing and conclude that
there was no error when the district court accepted Mackey’s
guilty plea. Accordingly, we affirm the conviction.
We have reviewed the sentence and conclude there was
no error. Mackey was sentenced in accordance with the Fair
Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372. Under the FSA, the statutory minimum sentence for
Mackey’s offense was five years’ imprisonment. The district
court could not impose a sentence below that statutory minimum
sentence without a motion filed by the Government. See 18
U.S.C. § 3553(e) (2006); see also Melendez v. United States, 518
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U.S. 120, 125-30 (1996). Because the Government did not move
for a lower sentence, and we note there was no agreement to do
so, the court properly found it could not impose a sentence
below the statutory minimum sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Mackey’s conviction and sentence. This
court requires that counsel inform Mackey, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Mackey 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 Mackey.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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