United States v. Brown , 305 F. App'x 72 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4402
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERWIN LEMAR BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00122-WO-1)
Submitted: December 11, 2008 Decided: December 15, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Gregory Davis,
Senior Litigator, Winston-Salem, North Carolina, for Appellant.
Michael Francis Joseph, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terwin Lemar Brown appeals his conviction and sentence
imposed for possession of a firearm by a convicted felon.
Brown’s counsel has filed an appeal under Anders v. California,
386 U.S. 738 (1967), raising the issue of whether Brown’s
sentence was properly calculated and reasonable. The Government
declined to file a brief. Brown has filed a pro se supplemental
brief. Finding no error, we affirm.
Counsel raises the issue of whether the district court
committed procedural or substantive error in determining Brown’s
sentence, but concludes that there was no sentencing error. A
sentence is reviewed for abuse of discretion with the review
encompassing both procedural soundness and substantive
reasonableness. Gall v. United States, 128 S. Ct. 586, 597
(2007). Brown’s counsel questions whether the court erred in
attributing a total of five criminal history points for five
separate convictions for misdemeanor criminal contempt for
failure to pay child support. Because Brown was sentenced to
thirty days for each conviction, the five criminal history
points were properly attributed.
Next, counsel raises whether Brown’s 81-month sentence
was greater than necessary to comply with 18 U.S.C. § 3553(a)
(2006). The properly calculated Guidelines range was 77 to 96
months. A sentence within the Guidelines range is presumptively
2
reasonable. The record reveals that the court considered the
§ 3553(a) factors and there is no indication that the district
court abused its discretion in fashioning the sentence.
Applying a presumption of reasonableness to the Guidelines
sentence, see United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see also Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007) (upholding presumption of reasonableness for
within-Guidelines sentence), we conclude that Brown has not
rebutted the presumption of reasonableness and that his sentence
is reasonable.
Brown’s pro se supplemental brief challenges his
arrest as a violation of the Fourth Amendment, alleges that he
received ineffective assistance of counsel in pleading guilty,
again challenges the inclusion of the five criminal history
points for failure to pay child support, and alleges that
counsel was ineffective in failing to present evidence that the
criminal history was improperly calculated when a juvenile
conviction was counted as an adult adjudication and the
suspended portion of the sentence was improperly considered.
After reviewing the record, we find no merit in these claims.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Brown’s conviction and sentence.
This court requires that counsel inform his client, in writing,
3
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
4