US v. George Odom, Jr.

Filing 920081024

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4159

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE ODOM, JR., Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00190-NCT-1)

Submitted:

October 21, 2008

Decided:

October 24, 2008

Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: George Odom, Jr., appeals from his conviction and 120month sentence imposed following his guilty plea to possession of a firearm by a convicted felon. Odom's attorney filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the four-level enhancement to Odom's offense level based on the finding that he possessed the firearm in connection with another felony, U.S. Sentencing Guidelines Manual (USSG) § 2K2.1 (2007), and the reasonableness of the sentence, but

stating that there was no merit to the appeal. se brief arguing history the these same issues was and

Odom filed a pro that his and

contending

criminal challenging (2000).

category

improperly of 18 U.S.C.

computed §

constitutionality

922(g)(1)

Our review of the record discloses no reversible error;

accordingly, we affirm Odom's conviction and sentence. Appellate courts review sentences imposed by district courts for reasonableness, applying an abuse of discretion

standard.

Gall v. United States, 128 S. Ct. 586, 597 (2007);

see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, a district court must: (1) properly calculate advisory; the (3) guideline consider range; the (2) treat set the guidelines 18 as

factors

out

in

U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. Pauley, 511 F.3d at 473. 2 We presume

that

a

sentence

within

the

properly

calculated

sentencing

guidelines range is reasonable.

United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 of (2007) (upholding of application of

rebuttable sentence).

presumption

correctness

within

guideline

The sentencing

district and

court we find

followed no

the of

necessary

steps in

in the

Odom,

abuse

discretion

sentence of 120 months of imprisonment.

The district court did

not clearly err in finding that the gun had the potential to facilitate the sale of marijuana, see USSG § 2K2.1, comment. (n.14), thus, we reject Odom's challenge to the four-level

enhancement for possession of the firearm in connection with another felony offense. Odom argues that his criminal history was improperly calculated, asserting that he was sentenced on the same day for two of his prior convictions, therefore they should not have been counted separately. affect Odom's sentence, Because the error, if any, would not we find no plain error in the

computation of Odom's criminal history category.

See United

States v. Olano, 507 U.S. 725, 732 (1993) (providing standard); USSG ch. 5, pt. A (sentencing table). Odom § 922(g)(1) as also a challenges of 3 the the constitutionality of federal of and

violation

separation

state powers clause of the Constitution. this contention.

We find no merit to

See United States v. McKenzie, 99 F.3d 813,

820 (7th Cir. 1996); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir. 1995). As required by Anders, we have reviewed the entire record and have found no meritorious issues for appeal. therefore affirm Odom's conviction and sentence. requires that counsel inform his client, in We

This court of his

writing,

right to petition the Supreme Court of the United States for further filed, review. but If the client requests such his a that a petition would leave be be to

counsel then

believes may

that renew

petition for

frivolous,

counsel

motion

withdraw from representation.

Counsel's motion must state that We dispense with oral

a copy thereof was served on the client.

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