Filed: Nov. 09, 2005
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4433 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DENISE MOORE ENLOE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-04-158) Submitted: October 21, 2005 Decided: November 9, 2005 Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. William L. O
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4433 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DENISE MOORE ENLOE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Chief District Judge. (CR-04-158) Submitted: October 21, 2005 Decided: November 9, 2005 Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. William L. Os..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4433
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENISE MOORE ENLOE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-04-158)
Submitted: October 21, 2005 Decided: November 9, 2005
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina,
for Appellant. Michael Francis Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Denise Moore Enloe appeals her sentence of fifty-two
months’ imprisonment that was imposed following her plea of guilty
to three counts of a four-count indictment: possession and intent
to distribute 55.8 grams of a mixture and substance containing a
detectable amount of marijuana, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(D) (2000) (“Count One”); possession with intent
to distribute 25.4 grams of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2000) (“Count Two”); and possession of
three firearms, a Taurus .22 caliber pistol, a Beretta 9mm pistol,
and a Raven Arms .25 caliber pistol, by a person who has been
convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (2000) (“Count Four”). Enloe’s counsel filed a brief
pursuant to Anders v. California,
386 U.S. 738 (1967), citing
United States v. Booker,
125 S. Ct. 738 (2005), and concluding
there are no meritorious issues for appeal, as the district court
properly calculated Enloe’s guideline range and the sentence
imposed was reasonable.1 We affirm.
Following Enloe’s guilty plea, a presentence report was
prepared. The presentence report grouped the three counts pursuant
1
Although Enloe was advised of her right to file a pro se
supplemental brief, she did not do so.
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to U.S. Sentencing Guidelines Manual (“USSG”) § 3D1.2(c),(d)
(2003). Because Count Four, the firearm charge, produced the
highest adjusted offense level, Count Four was used to determine
the guideline calculation for the group. See USSG § 3D1.3(a).
Pursuant to USSG § 2D2.1, Enloe’s base offense level for
a violation of 18 U.S.C. § 922(g) (the firearm charge) was twenty.
Because the offense involved three firearms, the base offense level
was increased by two, pursuant to USSG § 2K2.1(b)(1)(A). Because
Enloe used or possessed the firearm in connection with another
felony offense (the drug charges), the base offense level was
increased by four, pursuant to USSG § 2K2.1(b)(5). A three-level
reduction was then applied for acceptance of responsibility. See
USSG § 3E1.1(b). Based on a total offense level of twenty-three,
and a criminal history category of III, Enloe’s recommended
guideline range was fifty-seven to seventy-one months’
imprisonment.2
At sentencing, the district court noted the “advisory”
guideline range of fifty-seven to seventy-one months’ imprisonment
and imposed a sentence of fifty-two months’ imprisonment. To
calculate the term of imprisonment, the court started at the low
end of the recommended guideline range — fifty-seven months’
2
Although Enloe initially objected to the four-level firearm
enhancement, she subsequently withdrew her objection, stating that
“Booker requires the court to calculate the guideline range in
accordance with precedent. The guidelines have been calculated
correctly.”
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imprisonment — and subtracted five months Enloe already served as
a result of a state probation revocation. In so ruling, the court
reasoned that:
She [Enloe] has not helped you [counsel] a whole lot
because of her state court conviction and getting back
into it [drugs] and having the weapons. The Government
has treated her very leniently by not pursuing the
weapons charge, saved her that additional five years that
she would have to serve in addition to this, but I will
start at the bottom of the Guideline range, advisory
Guideline range of 57 months and subtract five months for
the time that she served for the state sentence, but I
can’t justify going lower than that based on her repeated
on her repeated activity and based on the firearms. I
start at the bottom of the Guideline range to make the
calculation because she offered to assist, so I give her
credit by doing that, for her offer to assist.
After the Supreme Court’s decision in United States v.
Booker,
125 S. Ct. 738 (2005), a sentencing court is no longer
bound by the range prescribed by the sentencing guidelines. See
United States v. Hughes,
401 F.3d 540, 546-47 (4th Cir. 2005)
(noting after Booker, sentencing courts should determine the
sentencing range under the guidelines, consider the other factors
under § 3553(a), and impose a reasonable sentence within the
statutory maximum). However, in determining a sentence post-
Booker, sentencing courts are still required to calculate and
consider the guideline range prescribed thereby as well as the
factors set forth in 18 U.S.C. § 3553(a) (2000). Id. As stated in
Hughes, this court will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. Id. at
546-47.
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This court has further stated that “while we believe that
the appropriate circumstances for imposing a sentence outside the
guideline range will depend on the facts of individual cases, we
have no reason to doubt that most sentences will continue to fall
within the applicable guideline range.” United States v. White,
405 F.3d 208, 219 (4th Cir. 2005). We find the district court
properly calculated the guideline range and appropriately treated
the guidelines as advisory. The court sentenced Enloe only after
considering and examining the sentencing guidelines, the factors
set forth in § 3553(a), and clearly articulated its rationale for
the sentencing departure. Based on these factors, and because the
court sentenced Enloe below the applicable guideline range and the
statutory maximum, we find that Enloe’s sentence of fifty-two
months of imprisonment is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Enloe’s conviction and sentence. This court
requires that counsel inform his client, in writing, of her 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, 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 the client. We dispense with oral argument because
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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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