United States v. Stewart , 370 F. App'x 400 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CALVIN JERMEL STEWART, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00142-HFF-1)
Submitted: February 24, 2010 Decided: March 19, 2010
Before KING, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Jermel Stewart, Jr. pled guilty, without a plea
agreement, to possession of a firearm and ammunition after
having been convicted of a crime punishable by more than one
year of imprisonment, in violation of 18 U.S.C. § 922(g) (2006).
In the presentence report (PSR), the probation officer
determined that Stewart qualified for sentencing as an armed
career criminal pursuant to 18 U.S.C. § 924(e) (2006) and U.S.
Sentencing Guidelines Manual (USSG) § 4B1.4 (2005). Stewart’s
status as an armed career criminal resulted in an offense level
of thirty-three, and a criminal history category of IV, which
yielded a sentencing range of 188 to 235 months of imprisonment.
Stewart did not object to the PSR. The district court sentenced
Stewart to 220 months of imprisonment.
Counsel failed to file a notice of appeal. Stewart
filed a 28 U.S.C.A. § 2255 (West Supp. 2009) motion, asserting
that he is actually innocent, that counsel was ineffective in
failing to file an appeal, that criminal history points were
incorrectly applied to place him in armed career criminal
status, and that his conviction for pointing a firearm does not
constitute a crime of violence after the Supreme Court’s
decision in Begay v. United States, 553 U.S. 137, 128 S. Ct.
1581, 1584-86 (2008). The district court granted relief in
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part, vacated its original judgment, and immediately reentered
judgment to allow Stewart a belated direct appeal.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in sentencing Stewart. In his pro se
supplemental brief, Stewart argues that the Anders brief was
submitted in violation of the Sixth Amendment and requests that
his appeal be remanded to the district court so that the court
may consider the merits of the claims asserted in his § 2255
motion. The Government declined to file a brief. We affirm.
This court reviews a sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate
consideration of both the procedural and substantive
reasonableness of a sentence. Id. After determining whether
the district court properly calculated the defendant’s advisory
Guidelines range, this court must then consider whether the
district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. “Regardless
of whether the district court imposes an above, below, or
within-Guidelines sentence, it must place on the record an
‘individualized assessment’ based on the particular facts of the
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case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009).
In this case, counsel does not assert any specific
error, procedural or substantive, in the district court’s
sentencing determination. Our review of the record leads us to
conclude that the district court did not err in sentencing
Stewart. In his pro se brief, Stewart argues that the three
convictions used to qualify him for an enhanced sentence as an
armed career criminal are not violent felonies under Begay.
This argument is meritless. In Begay, the Supreme Court held
that the offense of driving while intoxicated under New Mexico
law was not a violent felony under the Armed Career Criminal
Act’s “otherwise” clause because it was not sufficiently similar
to crimes specifically mentioned in that clause. Begay, 128 S.
Ct. at 1588. The Court stated that “[i]n our view, DUI differs
from the example crimes — burglary, arson, extortion, and crimes
involving the use of explosives — in at least one pertinent, and
important, respect. The listed crimes all typically involve
purposeful, ‘violent,’ and ‘aggressive’ conduct.” Id. at 1586.
Stewart’s prior convictions for pointing a firearm at another
person, lynching, and assault and battery of a high and
aggravated nature likewise involve “purposeful, violent, and
aggressive conduct.” The district court correctly determined
that Stewart qualified for sentencing as an armed career
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criminal. We also conclude that the district court provided a
sufficiently individualized explanation for its sentence that
demonstrated its consideration of the relevant § 3553(a)
factors, as required by Carter.
This court reviews the substantive reasonableness of
the sentence, “taking into account the ‘totality of the
circumstances, including the extent of any variance from the
Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597). This court
presumes that a sentence imposed within the properly calculated
guidelines range is reasonable. Rita v. United States, 551 U.S.
338, 347 (2007); United States v. Smith, 566 F.3d 410, 414 (4th
Cir. 2009). Stewart has presented no information to demonstrate
that the totality of the circumstances would support a sentence
below the Guidelines range, and our review of the record reveals
none.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We have considered the remaining arguments asserted in Stewart’s
supplemental brief, including those claims raised in his § 2255
motion in the district court, and find them to be without merit.
We therefore affirm Stewart’s conviction and sentence. This
court requires that counsel inform Stewart, in writing, of the
right to petition the Supreme Court of the United States for
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further review. If Stewart 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 Stewart.
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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