Unpublished
Uploaded by
Scribd Government DocsUnpublished
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LEE WALL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00017-WO-1)
Submitted:
June 4, 2009
Decided:
July 6, 2009
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Terry Michael Meinecke, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis
Lee
Wall
pled
conditional plea agreement *
guilty
pursuant
to
written
to possession of ammunition by a
convicted felon, in violation of 18 U.S.C. 922(g)(1) (2006),
and was sentenced to 84 months in prison.
Counsel
for
Wall
filed
Wall timely appealed.
brief
in
accordance
with
Anders v. California, 386 U.S. 738 (1967), acknowledging that
there are no meritorious grounds for appeal, but questioning
whether the district court erred by denying Walls motion for a
downward
departure
reasonable.
and
whether
the
imposed
sentence
was
Finding no reversible error, we affirm.
Wall contends the trial court erred by not granting
his
motion
belief
that
ammunition.
for
a
A
downward
departure
convicted
district
felon
courts
based
is
on
Walls
permitted
refusal
to
to
depart
mistaken
possess
from
the
applicable guidelines range does not provide a basis for appeal
under
18
U.S.C.
3742
(2006)
unless
the
court
failed
to
Wall preserved for appeal his claim that his prior
conviction was not for a crime punishable by imprisonment for a
term exceeding a year, as required by 922(g)(1), because he
received a sentence of less than a year.
However, as Wall
acknowledged, this court has held that, under 922(g)(1), we
look to the maximum possible sentence, not to the sentence
actually imposed, United States v. Jones, 195 F.3d 205, 207-08
(4th Cir. 1999); see also United States v. Harp, 406 F.3d 242,
246-47 (4th Cir. 2005) (reaffirming Jones holding after United
States v. Booker, 543 U.S. 220 (2005)).
understand its authority to do so.
United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008).
Here, the court clearly
recognized
but
its
authority
to
depart
downward departure was not warranted.
determined
that
Accordingly, this claim
is not cognizable on appeal.
A
review
presentence
report
of
the
reveals
sentencing
no
error
in
transcript
and
sentencing.
the
When
determining a sentence, the district court must calculate the
appropriate advisory guidelines range and consider this range in
conjunction with the factors set forth in 18 U.S.C. 3553(a)
(2006).
586,
Gall v. United States, 552 U.S. 381,
596
(2007).
imposition
of
Appellate
sentence,
review
whether
of
, 128 S. Ct.
inside,
district
just
courts
outside,
or
significantly outside the [g]uidelines range, is for abuse of
discretion.
128 S. Ct. at 591.
Sentences within the applicable
guidelines range may be presumed by the appellate court to be
reasonable.
United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Wall, appropriately treating the sentencing
guidelines as advisory, properly calculating and considering the
applicable
guidelines
range,
performing
an
individualized
assessment of the 3553(a) factors to the facts of the case,
and stating in open court the reasons for the sentence.
3
United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Walls
sentence, which is in the middle of the applicable guidelines
range
and
below
presumed
on
district
court
the
appeal
did
statutory
to
not
be
maximum
of
reasonable.
abuse
its
We
ten
years,
conclude
discretion
in
may
be
that
the
imposing
the
chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district courts judgment.
This court
requires that counsel inform Wall, in writing, of the right to
petition
the
Supreme
Court
of
the
United
States
for
further
review.
If Wall requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may
move
in
representation.
this
court
for
leave
to
withdraw
from
Counsel=s motion must state that a copy thereof
was served on Wall.
We dispense with oral argument because the facts and
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
