US v. Jonathan Simpson

Filing 920100210

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4149

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONATHAN SIMPSON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-00176-TLW-1)

Submitted:

January 25, 2010

Decided:

February 10, 2010

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina; Edye U. Moran, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Pursuant to a written plea agreement, Jonathan Simpson pled guilty to conspiracy to possess with intent to distribute Oxycodone. months in The district court sentenced Simpson to seventy-two prison to a and state directed sentence that Simpson the was sentence then run

consecutively

serving.

Simpson now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising two issues related to the sentence. Simpson was notified of his right to

file a pro se supplemental brief but has not filed such a brief. We affirm. Simpson adequately explain contends its that the for district imposing court a did not

reasons

consecutive,

rather than a concurrent, sentence. court erred when it imposed a

He also maintains that the sentence without

consecutive

addressing the factors set forth at U.S. Sentencing Guidelines Manual § 5G1.3, comment. (n.3(A)) (2007). A district court has discretion to make a defendant's federal sentence consecutive to or concurrent with an

undischarged sentence previously imposed.

18 U.S.C. § 3584(a)

(2006); United States v. Rogers, 897 F.2d 134, 137 (4th Cir. 1990). required U.S.C. In exercising this discretion, the court is statutorily to consider the sentencing 18 U.S.C. 2 factors set forth (2007). at 18 The

§ 3553(a)

(2006).

§ 3584(b)

relevant application note states that the court should consider, in addition to the § 3553(a) factors, certain aspects of the undischarged sentence and other relevant circumstances. § 5G1.3 comment. (n.3(A)). Our review of the sentencing transcript convinces us that the district did court sufficiently its considered when the above a USSG

matters

and

not

abuse

discretion

imposing

consecutive background,

sentence. his present

Defense

counsel and

argued details

that of

Simpson's his state

offense,

sentence, including his anticipated release and possible parole dates, merited a concurrent sentence. After considering

counsel's argument, the court concluded that the nature of the federal offense and Simpson's having committed it while on

probation compelled a consecutive sentence.

We conclude that See United

the district court did not abuse its discretion.

States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995) (stating standard of review). 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 3

this court 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

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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