United States v. Plumber , 201 F. App'x 935 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5213
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH LEVI PLUMBER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-24)
Submitted: September 22, 2006 Decided: October 4, 2006
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Paul Alexander Weinman, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Levi Plumber pled guilty to transporting a stolen
vehicle in interstate commerce in violation of 18 U.S.C. § 2312(2000), and using an unauthorized access device to obtain over
$1000 worth of things in violation of 18 U.S.C. § 1029(a)(2)
(2000). On August 24, 2004, Plumber was sentenced to serve
concurrent terms of thirty-one months’ imprisonment.
Plumber appealed and alleged the district court violated
his Sixth Amendment rights under United States v. Booker, 543 U.S.
220 (2005), because the court imposed a sentence based on facts
neither found by a jury beyond a reasonable doubt nor admitted by
himself. This court found that the district court erred by
applying the sentencing guidelines as mandatory.1 As a result,
this court affirmed the conviction, vacated the sentence, and
remanded for resentencing under Booker. See United States v.
Plumber, 138 F. App’x 519 (4th Cir. 2005).
At the resentencing hearing, the Government conceded the
Presentence Report added the multi-count adjustment to the adjusted
offense level in error. The court agreed with the Government’s
position and found the new total offense level to be fifteen. With
a criminal history category of III, the court found the proper
1
Plumber was sentenced before the Booker decision, and the
district court correctly applied the law at the time.
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guidelines imprisonment range to be twenty-seven to thirty-three
months, and sentenced Plumber to thirty-one months’ imprisonment.
On appeal, counsel filed an Anders2 brief, in which he
states that there are no meritorious issues for appeal, but that
his client directed him to raise the issue of whether the sentence
was unreasonable under Booker. Plumber was advised of his right to
file a pro se supplemental brief, but has not filed a brief. We
affirm the conviction and sentence.
The district court sentenced Plumber within the
applicable advisory guideline range and well below the ten-year
statutory maximum set forth in 18 U.S.C. §§ 1029(a)(2),
(c)(1)(A)(I), and 18 U.S.C. § 2312. We cannot conclude that, under
these circumstances, Plumber’s sentence is unreasonable. See
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006); United
States v. Green, 436 F.3d 449, 457 (4th Cir.) (finding that
sentence imposed within properly calculated advisory guideline
range is presumptively reasonable), cert. denied, 126 S. Ct. 2309(2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Plumber's conviction and sentence.
This court requires that counsel inform Plumber, in writing, of the
right to petition the Supreme Court of the United States for
2
Anders v. California, 386 U.S. 738 (1967).
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further review. If Plumber 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 Plumber. 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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