United States v. Plaismond , 203 F. App'x 428 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAGUESTE PLAISMOND, a/k/a Magueste Plasimond,
a/k/a Magueste Plaisimond, a/k/a Tyrone,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:98-cr-00109-2)
Submitted: September 6, 2006 Decided: October 16, 2006
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Angela Parrott, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Amy Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Magueste Plaismond appeals his 168-month prison sentence
resulting from his conviction for conspiracy to possess with intent
to distribute cocaine and cocaine base, in violation of 21 U.S.C.
§ 846 (2000), and possession with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).
Plaismond’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), certifying there are no
meritorious issues for appeal, but questioning whether Plaismond’s
sentence was reasonable because the district court refused to
reduce his sentence pursuant to the safety valve provision of the
sentencing guidelines. See U.S. Sentencing Guidelines Manual
§§ 2D1.1(b)(6), 5C1.2 (2005). Plaismond filed a pro se
supplemental brief claiming that his sentence was unreasonable
because the district court sentenced him using drug quantities of
cocaine base. Finding no reversible error, we affirm.
Plaismond claims that his sentence was unreasonable.
After United States v. Booker, 543 U.S. 220 (2005), a sentencing
court is no longer bound by the range prescribed by the sentencing
guidelines, but still must calculate and consider the guideline
range as well as the factors set forth in 18 U.S.C. § 3553(a)
(2000). See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). We will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id.- 2 -
Plaismond avers that he should have received a two level
reduction to his offense level under the safety valve provision.
The record, however, supports the district court’s conclusion that
Plaismond was not entirely forthcoming with authorities regarding
his drug activities prior to his first sentencing. Accordingly, he
did not qualify for a reduction under USSG § 5C1.2(a)(5).
Plaismond also contends he should not be held accountable
for quantities of cocaine base. However, he pled guilty to
conspiracy to possess and possession of quantities of cocaine and
cocaine base, and evidence at trial established that the conspiracy
involved both cocaine and cocaine base. The district court thus
properly calculated the sentencing guideline range of 168-210
months’ imprisonment. As Plaismond’s 168-month prison sentence is
within the properly calculated guideline range, it is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006). Plaismond has not rebutted that presumption as the district
court appropriately treated the guidelines as advisory, considered
the guideline range, and weighed the relevant factors under 18
U.S.C. § 3553(a) (2000).
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the judgment of the district court. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
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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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