United States v. Byrd

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEWIS MOSES BYRD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00067)
Submitted: October 20, 2006 Decided: December 6, 2006
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
E. James Chandler, II, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Kimlani Murray
Ford, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lewis Moses Byrd pled guilty pursuant to a plea agreement
to possession with intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2000), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (2000). The district court sentenced Byrd to a total
of 382 months’ imprisonment. Byrd appealed.1
Byrd’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
issues for appeal but seeking review of Byrd’s sentence for
unreasonableness. The district court found Byrd qualified as a
career offender pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1 (2003). Counsel contends the district court’s
decision to sentence Byrd according to this provision amounted to
a failure to treat the Sentencing Guidelines as advisory pursuant
to United States v. Booker, 543 U.S. 220 (2005), and resulted in an
excessive sentence. Because counsel raises this issue for the
first time on appeal, it is reviewed for plain error.2 See United
States v. Olano, 507 U.S. 725, 733-37 (1993).
1
The plea agreement contains a waiver of appellate rights.
However, the Government has not sought to enforce it.
2
Byrd has filed a pro se supplemental brief. However, the
issues he asserts are also raised for the first time on appeal and
are thus likewise reviewed for plain error.
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After Booker, we review a district court’s sentence “for
unreasonableness.” Booker, 543 U.S. at 261; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). A sentencing court
is no longer bound by the range prescribed by the advisory
Sentencing Guidelines. United States v. Green, 436 F.3d 449,
455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); Hughes,
401 F.3d at 546. In determining the sentence, however, courts are
still required to calculate and consider the Guidelines range, as
well as the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006). “The district court need not discuss each factor
set forth in § 3553(a) in checklist fashion; it is enough to
calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006) (quotation
omitted), cert. denied, 126 S. Ct. 2054 (2006).
“[A] sentence imposed within the properly calculated
Guidelines range . . . is presumptively reasonable.” Green, 436
F.3d at 457 (internal quotation marks and citation omitted).
Byrd’s sentence was within the properly calculated Guidelines
range, and is thus presumptively reasonable. Upon review, we
conclude that Byrd has not overcome this presumption, and that his
sentence is reasonable.
In his pro se supplemental brief, Byrd claims he was not
fully apprised of the mandatory minimum of ten years’ imprisonment
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under § 924(c) for discharging a firearm. The record belies this
claim. The plea agreement explicitly made Byrd aware of this
penalty, and Byrd indicated during the Fed. R. Crim. P. 11 hearing
that he understood and agreed with the terms of the plea agreement.
Upon review, we conclude Byrd knowingly and voluntarily entered his
guilty plea, with an understanding of its consequences. See United
States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004).
Byrd also claims the district court improperly counted
his 1991 second degree murder conviction as a predicate felony
committed by an adult for career offender status because he was
seventeen years old at the time of that conviction. A defendant is
a career offender if (1) he was at least eighteen years old when he
committed the instant offense; (2) the instant offense is a felony
that is either a crime of violence or a controlled substance
offense; and (3) he has at least two prior felony convictions for
either a crime of violence or a controlled substance offense. A
prior felony conviction must be “a prior adult federal or state
conviction for an offense punishable by death or imprisonment for
a term exceeding one year3 . . . .” USSG § 4A1.2, comment. (n.1).
3
Byrd’s 2002 conviction for possession with intent to sell or
deliver cocaine is a permissible predicate offense for a career
offender finding, even though Byrd was sentenced to an eight to
ten-month suspended sentence and served only a thirty-day jail term
for the offense. The relevant question is whether any defendant
charged with the crime could receive a sentence of more than one
year, not whether Byrd in particular did or could have. That is,
the court must consider “the maximum aggravated sentence that could
be imposed for that crime upon a defendant with the worst possible
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A conviction sustained before age eighteen may qualify as a
predicate conviction “if it is classified as an adult conviction
under the laws of the jurisdiction in which the defendant was
convicted.” Id.
Byrd relies on United States v. Mason, 284 F.3d 555 (4th
Cir. 2002), which concludes that an adult conviction for which a
juvenile sentence was imposed may not be counted as a predicate
conviction under § 4B1.1, but such reliance on Mason is misplaced.
Mason involved a West Virginia sentencing scheme that permits a
defendant under eighteen who is convicted as an adult to be
sentenced as a juvenile, while the North Carolina Youthful Offender
Act had no similar provision.4 A youthful offender sentence was
one type of adult sentence. Because Mason is inapposite, Byrd has
not demonstrated the district court erred in deciding that his
North Carolina youthful offender sentence was an adult sentence.5
criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th
Cir.), cert. denied, 126 S. Ct. 297 (2005). Byrd’s 2002 conviction
was a Class H felony, which carries a maximum of thirty months’
imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2003).
4
The North Carolina Youthful Offender Act was repealed in
1995. See N.C. Gen. Stat. § 148-49.10 (2001).
5
Additionally, Byrd’s contention that the district court
violated Booker when it deemed Byrd was a career offender after
finding the fact of his prior convictions is meritless. See
United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.) (stating
that the rule of Almendarez-Torres v. United States, 523 U.S. 224(1998), was not overruled by Booker and remains the law), cert.
denied, 126 S. Ct. 640 (2005).
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Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Byrd’s convictions and sentence. We deny Byrd’s motion to compel
his counsel to surrender all documents relating to the appeal.
This court requires that counsel inform the 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
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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