US v. Donald Byrd

Filing 920090508

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4787

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. DONALD EDWARD BYRD, Defendant ­ Appellant,

DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION; LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL; JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS FARGO HOME MORTGAGE, INCORPORATED, Parties-in-Interest.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:02-cr-00548-CMC-19)

Submitted:

April 22, 2009

Decided:

May 8, 2009

Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John Preston BAILEY, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Beth Drake, Mark C. Moore, Jane Barrett Taylor, Assistant United States Attorneys, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Donald Edward Byrd was convicted by a jury of

conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and possession of a firearm by a

felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to life in prison. convictions and sentence. Byrd appealed, challenging his

We affirmed Byrd's convictions and

rejected claims relating to his sentence, but because he was sentenced vacated under the then-mandatory for resentencing Sentencing consistent Guidelines, with United

and

remanded

States v. Booker, 543 U.S. 220 (2005).

See United States v.

Davis, 270 F. App'x 236 (4th Cir. March 17, 2008) (unpublished). On remand, the district court imposed a 300-month

variant sentence and Byrd timely appealed.

Counsel for Byrd has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), appeal explaining but that he found no meritorious variant grounds sentence for is

suggesting

that

Byrd's

unreasonable.

Counsel also moved for permission to withdraw Byrd has not filed a pro for to the appointment file a of new

from further representation of Byrd. se supplemental The brief but has has moved

counsel. brief.

Government no

declined affirm

responding court's

Finding

error,

we

district

judgment and deny the pending motions. 3

In

accordance

with

Anders,

we

have

reviewed

the

record in this case and have found no meritorious issues for review. After Booker, a sentence is reviewed for

reasonableness, using an abuse of discretion standard of review. Gall v. United States, 128 S. Ct. 586, 597 (2007). step in this court v. review requires no 526 the court to ensure The first that the

district United

committed Evans,

significant F.3d 155, 161

procedural (4th Cir.

error. 2008).

States

Assuming the district court committed no significant procedural error, this court must next consider the substantive

reasonableness of the sentence imposed, taking into account the totality of the circumstances. Id. at 161-62.

While the court may presume that a sentence within the Guidelines range is reasonable, it may not presume that a

sentence outside the Guidelines range is unreasonable.

Gall,

128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. is 2008) ("[A] sentence the that deviates from the

Guidelines

reviewed

under

same

deferential

abuse-of-

discretion standard as a sentence imposed within the applicable guidelines range."), cert. denied, 129 S. Ct. 1312 (2009).

Rather, in reviewing a sentence outside the Guidelines range, we "consider the extent of the deviation, but must give due

deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." 4 Gall,

128 S. Ct. at 597.

Even if this court would have imposed a

different sentence, this fact alone will not justify vacatur of the district court's sentence. We sentence to find be the Id. court's remand, 300-month the variant court

district On

reasonable.

district

entertained counsel's argument regarding the weight that should be afforded the § 3553(a) factors, allowed Byrd an opportunity to allocute, and thoroughly considered the § 3553(a) factors before imposing Byrd's sentence. court variant district justify adequately sentence court the explained and that its the We conclude that the district rationale reasons for imposing upon by the the and

relied under

are

valid

considerations See

§ 3553(a) v.

sentence

imposed.

United

States

Pauley,

511 F.3d 468, 473-76 (4th Cir. 2007). Having reviewed the record in this case and finding no meritorious appointment judgment. withdraw issues of new for review, and we deny Byrd's motion for

counsel

affirm

the

district

court's

At this juncture, we also deny counsel's motion to from further representation of Byrd. Rather, this

court requires that counsel inform Byrd in writing of his right to petition the Supreme Court of the United States for further review. If Byrd requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. 5

Counsel's motion must state that a copy thereof was served on Byrd. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

6