US v. James Weak

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00308-NCT-1 Copies to all parties and the district court/agency. [998559315].. [10-4832]

Case: 10-4832

Document: 25

Date Filed: 04/04/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4832

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES IRVIN WEAKS, a/k/a Little Weaks,
Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00308-NCT-1)

Submitted:

March 24, 2011

Decided:

April 4, 2011

Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.
Randall Stuart Galyon, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 10-4832

Document: 25

Date Filed: 04/04/2011

Page: 2

PER CURIAM:
James

Irvin

Weaks

appeals

the

218-month

sentence

imposed following his guilty plea to one count of possession
with

intent

U.S.C.

to

distribute

§ 841(a)(1),

count

of

cocaine

(b)(1)(B)

possession

of

base,

(2006)

firearms

in

(“Count

in

violation
One”),

furtherance

of

of

21

and

one

a

drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(2006) (“Count Three”).
court

in

accordance

Counsel for Weaks filed a brief in this

with

Anders

v.

California,

386

U.S.

738

(1967), certifying that there are no non-frivolous issues for
appeal, but questioning whether the district court imposed an
unreasonable sentence.
claiming

that

the

Weaks filed a pro se supplemental brief

district

court

imposed

an

unreasonable

sentence on Count One based upon the enhanced penalties made
available by 21 U.S.C. § 841(b)(1)(B) to defendants with prior
felony

drug

convictions.

Finding

no

reversible

error,

we

affirm.
Because
than

the

one

plain error.

Weaks

ultimately

did

not

imposed,

request
we

a

review

different
his

sentence

sentence

for

See United States v. Lynn, 592 F.3d 572, 578-79

(4th Cir. 2010) (unpreserved sentencing errors reviewed only for
plain

error).

We

begin

by

reviewing

the

sentence

for

significant procedural error, including such errors as “failing
to calculate (or improperly calculating) the Guidelines range,
2

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treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence including an explanation for any deviation from
the Guidelines.”
If

there

are

Gall v. United States, 552 U.S. 38, 51 (2007).
no

procedural

errors,

we

then

consider

the

substantive reasonableness of the sentence, taking into account
the totality of the circumstances.

United States v. Pauley, 511

F.3d 468, 473 (4th Cir. 2007).
“When rendering a sentence, the district court ‘must
make

an

individualized

presented.’”
Cir.

2009)

assessment

based

on

the

facts

United States v. Carter, 564 F.3d 325, 328 (4th
(quoting

Gall,

552

U.S.

at

50).

Accordingly,

a

sentencing court must apply the relevant § 3553(a) factors to
the particular facts presented and must “state in open court”
the particular reasons that support its chosen sentence.
The

court’s

explanation

need

not

be

exhaustive;

it

must

Id.
be

“sufficient ‘to satisfy the appellate court that [the district
court] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.’”
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)
(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
We
procedural

hold
nor

that

the

substantive

district
error
3

court

during

committed
sentencing.

neither
The

Case: 10-4832

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Page: 4

district court used the correct advisory Guidelines range and
explained its reasoning, considering both parties’ arguments and
the § 3553(a) factors.
Weaks

objects

to

the

elevation

of

his

statutory

minimum on Count One to ten years’ imprisonment on the basis of
his prior North Carolina drug conviction, arguing that it should
not

have

been

classified

as

a

felony

drug

conviction

for

purposes of 21 U.S.C. § 841(b)(1)(B) because he was only subject
to

an

eight-month

conviction.

maximum

sentence

for

the

North

Carolina

See 21 U.S.C. § 802(44) (2006) (defining “felony

drug offense” as “an offense punishable by imprisonment for more
than

one

State”).

year
We

under
hold

any

that,

law

of

the

regardless

United
of

States

whether

or

Weaks’

of

a

prior

conviction qualifies as a felony drug offense under CarachurRosendo v. Holder, 130 S. Ct. 2577 (2010), the district court’s
application of a ten-year statutory minimum on Count One was not
plain error.

Weaks’ Guidelines range on Count One was higher

than and unaffected by the ten-year statutory minimum, and the
district court explicitly stated that it believed a sentence in
the middle of the Guidelines range was appropriate.

Because

Weaks cannot show that any error in classifying his prior North
Carolina

conviction

was

plain

or

affected

his

substantial

rights, Lynn, 592 U.S. at 577, we conclude that the district
court did not commit plain error.
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In accordance with Anders, we have examined the entire
record and find no other meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We
court

requires that counsel inform Weaks, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Weaks requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Weaks.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

5