United States v. Donaldson , 242 F. App'x 913 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5060
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAQUAN LAMEL DONALDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00057)
Submitted: May 25, 2007 Decided: June 18, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North
Carolina, for Appellant. Robert John Gleason, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daquan Lamel Donaldson appeals from his sentence imposed
following his guilty plea to one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000).
The presentence investigation report (“PSR”) recommended that
Donaldson’s base offense level be increased pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 2K2.1(c)(1) (2005).
Section 2K2.1(c)(1) cross-referenced to USSG § 2X1.1, which
increased Donaldson’s base offense level for his use of the firearm
in a robbery. The district court adopted the findings of the PSR,
denied Donaldson’s motion for a variance, and sentenced Donaldson
to 120 months’ imprisonment. Donaldson’s counsel filed a brief
pursuant to Anders v. California, 286 U.S. 738, 744 (1967), stating
that there were no meritorious issues for appeal, but suggesting
that the district court erred in sentencing Donaldson. Donaldson
was apprised of his right to file a pro se supplemental brief but
elected not to do so.
After United States v. Booker, 543 U.S. 220 (2005), a
district court is no longer bound by the range prescribed by the
sentencing guidelines. However, in imposing a sentence
post-Booker, courts still must calculate the applicable guideline
range after making the appropriate findings of fact and consider
the range in conjunction with other relevant factors under the
guidelines and § 3553(a). United States v. Moreland, 437 F.3d 424,
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432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court
will affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (internal
quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
On appeal, counsel first questions the propriety of the
district court’s decision to cross-reference the robbery charge in
determining Donaldson’s advisory guideline range. The cross-
reference found at USSG § 2K2.1(c) directs the application of USSG
§ 2X1.1, if the defendant used or possessed the firearm in
connection with another offense. As Donaldson used a firearm in
the commission of a robbery, the district court correctly concluded
that the cross-reference applied. Accordingly, the district court
properly applied the sentencing guidelines.
Next, counsel questions whether the district court erred
in denying Donaldson’s motion for a variance. Donaldson’s sentence
was at the bottom of the 120-150 month advisory guideline range and
within the ten year statutory maximum. Because the district court
appropriately treated the guidelines as advisory, and properly
calculated and considered the guideline range and the relevant §
3553(a) factors, we find the sentence reasonable. See United
States v. Green, 436 F.3d 449 (4th Cir.) (holding that a sentence
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within the properly calculated guidelines range is presumptively
reasonable), cert. denied, 126 S. Ct. 2309 (2006).
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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
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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