United States v. Deberry , 173 F. App'x 306 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4777
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY LAMONT DEBERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (CR-04-41-BO)
Submitted: March 3, 2006 Decided: April 4, 2006
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James M. Ayers, II, AYERS, HAIDT & TRABUCCO, PA, New Bern, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina; John Howarth Bennett,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terry Lamont Deberry pled guilty, without the benefit of a
plea agreement, to possession of a firearm by a felon and aiding
and abetting the same criminal conduct, in violation of 18 U.S.C.
§§ 922(g)(1), 924, 2 (2000). In July 2005, the district court
sentenced Deberry to 120 months’ imprisonment, the statutory
maximum term, which fell below the calculated range of imprisonment
under the advisory sentencing guidelines. See 18 U.S.C.
§ 924(a)(2) (2000). Deberry’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), representing that, in
his view, there are no meritorious issues for appeal; however, he
requests that this court review Deberry’s sentence. Deberry was
notified of the opportunity to file a pro se supplemental brief,
but declined to do so.
First, we find no merit in counsel’s contention that, post-
United States v. Booker, 543 U.S. 220 (2005), the district court
must make factual findings concerning the guideline calculation
beyond a reasonable doubt. See United States v. Dalton, 409 F.3d
1247, 1252 (10th Cir. 2005); United States v. Mares, 402 F.3d 511,
519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); McReynolds v.
United States, 397 F.3d 479, 481 (7th Cir.), cert. denied, 125 S.
Ct. 2559 (2005).
Deberry’s counsel also disputes the evidence supporting the
district court’s factual findings. At the sentencing hearing,
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Deberry admitted his participation in an underlying offense of
armed robbery. The evidence in the presentence report indicated
Deberry stole the automobile used in the robbery, and Deberry’s
counsel acknowledges in his Anders brief that his client served as
the driver. Pursuant to U.S. Sentencing Guidelines Manual
§ 2K2.1(c)(1) (2004), which corresponds to the offense to which
Deberry pled guilty, he was sentenced as a conspirator to the
underlying offense of armed robbery. Because the district court
found the evidence supporting the specific offense characteristics
executed by Deberry’s co-conspirators to be credible and
attributable to Deberry, we conclude that the district court did
not err in its calculation of the applicable sentencing guideline
range. Further, we find this post-Booker sentence to be both
reasonable and within the statutorily prescribed range. United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
Pursuant to Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm
Deberry’s conviction and sentence. In addition, we deny counsel’s
motion to withdraw from further representation. This court
requires that counsel inform his client, in writing, of his right
to petition to the Supreme Court of the United States for further
review. If the client requests that the 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
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representation. Counsel’s motion must state that a copy 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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