US v. Edward McCain

Filing 920110228

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4252

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EDWARD MCCAIN, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00296-PMD-2)

Submitted:

December 20, 2010

Decided:

February 28, 2011

Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Timothy C. Kulp, KULP LAW OFFICE, Charleston, South Carolina, for Appellant. Peter Thomas Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Edward McCain pled guilty, pursuant to a written plea agreement, to three offenses in his superseding indictment.

McCain received a life sentence for tampering with a witness, victim or informant and (murder) 2 (2006) in violation 1), of a 18 U.S.C.

§§ 1512(a)(1)(C)

(Count

thirty-year

concurrent sentence for tampering with a witness, victim, or informant (attempted murder) (Count 2), and another life

sentence for using and carrying a firearm in furtherance of a drug trafficking crime and crime of violence in violation of 18 U.S.C.A. § 924(c)(1)(A)(i) (West Supp. 2010), 18 U.S.C.

§§ 924(j) and 2 (2006) (Count 5). On appeal, counsel filed a brief pursuant to Anders v. California, meritorious issues: McCain's 386 U.S. 738 (1967), asserting raising erred there the in are no

grounds

for the

appeal,

but

following accepting erred in

(1) plea,

whether and

district the

court

(2)

whether

district

court

sentencing him. First, hearing.

For the reasons that follow, we affirm. we find no plain error at McCain's sentencing

See United States v. Martinez, 277 F.3d 517, 524, 527

(4th Cir. 2002) (providing review standard when defendant did not move in the district court to withdraw his guilty plea). Second, we find no abuse of discretion in the district court's

2

sentencing of McCain. (2007). statute.

Gall v. United States, 552 U.S. 38, 49

We note that McCain's life sentences were mandated by See 18 U.S.C. § 1111(b) (2006) (penalty for first

degree murder is death or a life sentence); 18 U.S.C. § 924(j) (penalty for use of a firearm which causes death is a sentence of death or life imprisonment). McCain was not eligible for a

sentence of death, however, because he was a minor at the time of the offenses. See 18 U.S.C. § 3591(a) (2006) (noting "that

no person may be sentenced to death who was less than 18 years of age at the time of the offense"). In accordance with Anders, we have reviewed the record in this case, including the issues raised in McCain's pro se supplemental brief, and have found no meritorious issues for appeal. We therefore affirm McCain's convictions and sentence.

This court requires that counsel inform McCain, in writing, of the right to petition the Supreme Court of the United States for further review. If McCain 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 McCain. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials

3

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

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