US v. David Tate

Filing 920090625

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4665

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ALLEN TATE, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:06-cr-00025-LHT)

Submitted:

May 28, 2009

Decided:

June 25, 2009

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John J. Nickerson, THE NICKERSON LAW FIRM, PLLC, Charlotte, North Carolina, for Appellant. Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: David Allen Tate was convicted of possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and was sentenced to 110 months in prison. Tate now appeals. His

attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. Tate was advised of his right to file a pro se

supplemental brief but did not file such a brief. We conclude that the evidence was sufficient to

sustain Tate's conviction. U.S. 60, 80 (1942).

See Glasser v. United States, 315

Officers executed a search warrant at a

residence, where they discovered a loaded revolver in a clothes basket. Tate admitted to authorities that he had agreed to hold It was stipulated that Tate had punishable by a term of

the gun for another individual. been convicted of an

offense

imprisonment of more than one year and that the gun in question had traveled in interstate commerce. We further conclude that Tate's sentence was

procedurally and substantively reasonable. States, 128 S. Ct. 586, 597-98 (2007). correctly U.S.C. calculated the Guidelines factors,

See Gall v. United

We note that the court considered the 18 its

range,

§ 3553(a)

(2006)

and

adequately

stated

2

reasons for imposing sentence.

See United States v. Pauley, 511

F.3d 468, 473-74 (4th Cir. 2007). * We have reviewed the entire record in accordance with Anders appeal. and have not identified any meritorious issues for

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 this court for leave 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 questions are adequately presented in the materials before the court and argument would not significantly aid the

decisional process. AFFIRMED

To the extent that there was a violation of Kimbrough v. United States, 128 S. Ct. 558 (2007), we note that Tate failed to establish plain error in connection with the violation. See United States v. Olano, 507 U.S. 725, 731-32 (1993); United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). Our recent decision in United States v. Antonio, 311 F. App'x 679 (4th Cir. 2009) (No. 07-4791) (unpublished), does not alter this conclusion.

*

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