United States v. Barnette , 396 F. App'x 981 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4913
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN BARNETTE,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00124-MR-1)
Submitted: September 30, 2010 Decided: October 7, 2010
Before NIEMEYER, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Assistant Federal Defender, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Barnette pled guilty to possession of a firearm
after having been convicted of a felony offense, in violation of
18 U.S.C. § 922(g)(1) (2006). The district court sentenced
Barnette to 180 months imprisonment, the mandatory minimum
sentence under the statute. Barnette’s attorney filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
stating that, in counsel’s view, there are no meritorious issues
for appeal, but questioning whether Barnette was properly
sentenced as an armed career criminal. Barnette was advised of
his right to file a supplemental pro se brief, but has not done
so. Finding no reversible error, we affirm.
Barnette challenges the determination that he be
sentenced as an armed career criminal due to his North Carolina
convictions for breaking or entering under North Carolina
General Statutes § 14-54(a) (2009). A person who violates 18
U.S.C. § 922(g)(1) and has three prior convictions for a violent
felony offense qualifies as an armed career criminal and is
subject to a minimum sentence of fifteen years. 18 U.S.C.
§ 924(e)(1) (2006). This court has previously held that “a
North Carolina conviction for ‘breaking or entering’ under North
Carolina General Statutes § 14-54(a) is, as a matter of law, a
‘violent felony’ within the meaning of ACCA.” United States v.
Thompson, 588 F.3d 197, 202 (4th Cir. 2009), cert. denied, 130
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S. Ct. 1916 (2010). Accordingly, we affirm the district court’s
determination that Barnette qualified as an armed career
criminal.
The district court further considered Barnette’s
individual circumstances and granted a downward variance from
the applicable guideline range to 180 months, the statutory
minimum sentence for an armed career criminal. We conclude that
this sentence was reasonable and therefore affirm the sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007); see United
States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
We have reviewed the entire record in this case and
have found no meritorious issues for appeal. This court
requires that counsel inform Barnette, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Barnette 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 Barnette. 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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