United States v. Belser , 176 F. App'x 401 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4502
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL BELSER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-197)
Submitted: March 31, 2006 Decided: April 18, 2006
Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury,
Jr., Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, L.
Patrick Auld, Assistant United States Attorney, Kearns Davis,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Belser was found guilty of possession with intent
to distribute forty-one grams of cocaine base (“crack”) (Count 1),
possession of a firearm by a convicted felon (Count 2), and
possession of firearm in furtherance of a drug trafficking crime
(Count 3). Taking into account the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), and the factors in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), the court sentenced
Belser under the advisory Sentencing Guidelines to a total sentence
of 248 months of imprisonment: 188 months for Count 1, 120 months
concurrently on Count 2, and five years (sixty months) to run
consecutively for Count 3. On appeal, Belser’s counsel alleges
there was insufficient evidence to support his conviction for Count
3. In his pro se supplemental brief, Belser alleges that his
sentence for Count 1 violates Booker. For the reasons that follow,
we affirm.
First, viewing the evidence as required, Glasser v.
United States, 315 U.S. 60, 80 (1942), any rational trier of fact
could have found the essential elements of Belser’s conviction for
possession of a firearm in furtherance of a drug trafficking crime
beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (stating standard). Accordingly, this claim
fails.
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Second, we do not find the district court’s sentence
relying on Booker and 18 U.S.C.A. § 3553(a) was unreasonable.
Booker, 543 U.S. at 261; United States v. Hughes, 401 F.3d 540,
546-47 (4th Cir. 2005). “[A] sentence imposed within the properly
calculated Guidelines range . . . is presumptively reasonable.”
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (internal
quotation marks and citation omitted). Therefore, this claim
fails.
Accordingly, we affirm Belser’s convictions and
sentences. 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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