United States v. Wall , 336 F. App'x 351 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4943
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LEE WALL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00017-WO-1)
Submitted: June 4, 2009 Decided: July 6, 2009
Before MOTZ, TRAXLER, and DUNCAN, 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Affirmed by unpublished per curiam opinion.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.
Terry Michael Meinecke, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Lee Wall pled guilty pursuant to a written
conditional plea agreement * to possession of ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006),
and was sentenced to 84 months in prison. Wall timely appealed.
Counsel for Wall filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), acknowledging that
there are no meritorious grounds for appeal, but questioning
whether the district court erred by denying Wall’s motion for a
downward departure and whether the imposed sentence was
reasonable. Finding no reversible error, we affirm.
Wall contends the trial court erred by not granting
his motion for downward departure based on Wall’s mistaken
belief that a convicted felon is permitted to possess
ammunition. A district court’s refusal to depart from the
applicable guidelines range does not provide a basis for appeal
under 18 U.S.C. § 3742 (2006) “unless the court failed to
*
Wall preserved for appeal his claim that his prior
conviction was not for “a crime punishable by imprisonment for a
term exceeding a year,” as required by § 922(g)(1), because he
received a sentence of less than a year. However, as Wall
acknowledged, this court has held that, under § 922(g)(1), we
look to the maximum possible sentence, not to the sentence
actually imposed, United States v. Jones, 195 F.3d 205, 207-08
(4th Cir. 1999); see also United States v. Harp, 406 F.3d 242,
246-47 (4th Cir. 2005) (reaffirming Jones holding after United
States v. Booker, 543 U.S. 220 (2005)).
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understand its authority to do so.” United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Here, the court clearly
recognized its authority to depart but determined that a
downward departure was not warranted. Accordingly, this claim
is not cognizable on appeal.
A review of the sentencing transcript and the
presentence report reveals no error in sentencing. When
determining a sentence, the district court must calculate the
appropriate advisory guidelines range and consider this range in
conjunction with the factors set forth in 18 U.S.C. § 3553(a)
(2006). Gall v. United States, 552 U.S. 381, , 128 S. Ct.
586, 596 (2007). Appellate review of a district court’s
imposition of a sentence, “whether inside, just outside, or
significantly outside the [g]uidelines range,” is for abuse of
discretion. 128 S. Ct. at 591. Sentences within the applicable
guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Wall, appropriately treating the sentencing
guidelines as advisory, properly calculating and considering the
applicable guidelines range, performing an “individualized
assessment” of the § 3553(a) factors to the facts of the case,
and stating in open court the reasons for the sentence. United
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States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). Wall’s
sentence, which is in the middle of the applicable guidelines
range and below the statutory maximum of ten years, may be
presumed on appeal to be reasonable. We conclude that the
district court did not abuse its discretion in imposing the
chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Wall, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Wall 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 Wall.
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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