United States v. Simpson , 364 F. App'x 832 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4149
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN SIMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00176-TLW-1)
Submitted: January 25, 2010 Decided: February 10, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina; Edye U. Moran, Assistant Federal
Public Defender, Columbia, South Carolina, for Appellant.
William E. Day, II, Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Jonathan Simpson
pled guilty to conspiracy to possess with intent to distribute
Oxycodone. The district court sentenced Simpson to seventy-two
months in prison and directed that the sentence run
consecutively to a state sentence Simpson was then serving.
Simpson now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising two issues
related to the sentence. Simpson was notified of his right to
file a pro se supplemental brief but has not filed such a brief.
We affirm.
Simpson contends that the district court did not
adequately explain its reasons for imposing a consecutive,
rather than a concurrent, sentence. He also maintains that the
court erred when it imposed a consecutive sentence without
addressing the factors set forth at U.S. Sentencing Guidelines
Manual § 5G1.3, comment. (n.3(A)) (2007).
A district court has discretion to make a defendant’s
federal sentence consecutive to or concurrent with an
undischarged sentence previously imposed. 18 U.S.C. § 3584(a)
(2006); United States v. Rogers, 897 F.2d 134, 137 (4th Cir.
1990). In exercising this discretion, the court is statutorily
required to consider the sentencing factors set forth at 18
U.S.C. § 3553(a) (2006). 18 U.S.C. § 3584(b) (2007). The
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relevant application note states that the court should consider,
in addition to the § 3553(a) factors, certain aspects of the
undischarged sentence and other relevant circumstances. USSG
§ 5G1.3 comment. (n.3(A)).
Our review of the sentencing transcript convinces us
that the district court sufficiently considered the above
matters and did not abuse its discretion when imposing a
consecutive sentence. Defense counsel argued that Simpson’s
background, his present offense, and details of his state
sentence, including his anticipated release and possible parole
dates, merited a concurrent sentence. After considering
counsel’s argument, the court concluded that the nature of the
federal offense and Simpson’s having committed it while on
probation compelled a consecutive sentence. We conclude that
the district court did not abuse its discretion. See United
States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995) (stating
standard of review).
We have reviewed the entire record in accordance with
Anders and have not identified any meritorious issues for
appeal. Accordingly, we affirm. This court requires counsel to
inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in
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this court to withdraw from representation. Counsel’s motion
must state that a copy of the motion 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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