UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4182



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CHARLES ALAN O’CONNOR,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00060-NCT-l)


Submitted:   October 16, 2008            Decided:   November 24, 2008


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Michael A. DeFranco, Angela Hewlett Miller, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Charles Alan O’Connor pled guilty pursuant to a written

plea agreement to one count of possessing a firearm after being

convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (2000).        The district court sentenced O’Connor to twelve

months   in    prison,    and    O’Connor     timely    appealed.         O’Connor’s

attorney filed a brief in accordance with Anders v. California, 

(1967), certifying that there are no meritorious grounds

for   appeal,    but     questioning    whether        O’Connor’s    guilty    plea

proceeding was properly conducted and whether the district court

abused its discretion by not imposing a lower sentence.                         The

Government did not file a reply brief.              O’Connor submitted a pro se

supplemental      brief    contending       that:      (1)   the    evidence    was

insufficient     to    demonstrate     that    he    knowingly      and   illegally

possessed the firearm; (2) he did not have a firearm on his person

in connection with two shooting incidents at his bar, despite ABC

investigative reports that stated otherwise; (3) he was falsely

accused of involvement with child pornography; and (4) due to his

deteriorating health he should not be placed in a facility other

than Butner; however, the Bureau of Prisons keeps trying to place

him in FCI Petersburg.          Finding no reversible error, we affirm.

              Counsel’s brief first evaluates whether the district

court properly conducted the hearing at which O’Connor entered his

guilty plea.      For the reasons summarized by counsel, we are in


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agreement    that   the   court    meticulously   conducted     the    Rule    11

proceeding.       Based   upon    O’Connor’s   responses   to    the    court’s

inquiries and the evidence presented, the court properly concluded

that O’Connor fully understand the nature of the charges against

him   and   the   applicable     punishment    range,   that   the    plea    was

knowingly and voluntarily entered, and that there was an adequate

factual basis for the plea.        Accordingly, we find no deficiency in

the guilty plea proceeding.

            Likewise, we find no basis to question the sentence

imposed by the district court.        After United States v. Booker, 

(2005), a district court is no longer bound by the range

prescribed by the sentencing guidelines.           However, in imposing a

sentence post-Booker, courts still must calculate the applicable

guidelines range after making the appropriate findings of fact, and

consider the range in conjunction with other relevant factors under

the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 &            Supp. 2008).

Gall v. United States, 

, 596 (2007).             The court must

give both parties an opportunity to argue for whatever sentence

they deem appropriate,” and the district judge “may not presume

that the Guidelines range is reasonable.”         

97.   This court will affirm a post-Booker sentence if it “is within

the statutorily prescribed range and is reasonable.”                 

quotation marks and citation omitted).                On appellate

review, this court may presume that a sentence within the properly


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calculated advisory Guidelines range is reasonable. Rita v. United

States, 

, 2462, 2465 (2007).

              Here,   the    district     court      sentenced    O’Connor   after

considering     and   examining     the       sentencing   guidelines     and    the

§   3553(a)    factors,     as   instructed     by    Booker,    and   applied   the

guidelines as advisory. The court heard from both O’Connor and the

Government about calculation of his criminal history score and

O’Connor was permitted to argue for a lower sentence or probation.

Counsel argued that the firearm actually belonged to O’Connor’s

wife and O’Connor had never used the weapon nor intended to, and

that O’Connor had serious health concerns; thus, probation was an

appropriate alternative.          The court sentenced O’Connor to twelve

months, the bottom of the advisory guidelines range, and well below

the statutory maximum of ten years.               The court explained that it

would not depart from the guidelines range, in light of the fact

that O’Connor likely had possession of the same firearm as far back

as 2002, he knew the firearm was at the bar and in his house, and

he was aware that he was not legally permitted to possess it.

Because neither O’Connor nor the record reveals any information to

rebut the presumption that his sentence was reasonable, we find no

fault with the length of the sentence imposed by the district

court.

              We likewise reject the issues raised by O’Connor in his

pro se submissions.         O’Connor first argues that the evidence was


                                          4
insufficient to support his conviction.                   A valid guilty plea,

however,       forecloses   the        right      to     challenge        antecedent,

non-jurisdictional defects.            See Tollett v. Henderson, 

, 267 (1973); Hall v. McKenzie, 

(4th Cir. 1978).

Accordingly, we conclude O’Connor’s insufficiency of evidence claim

is waived by his validly entered guilty plea.

            Next, O’Connor argues that he did not possess a gun

during   two    incidents   at       his   bar,   as    reported     by    local    law

enforcement. The district court found these instances demonstrated

by a preponderance of the evidence that O’Connor possessed the gun

at least since 2002 and negated his argument that the gun was never

under his control but solely used by his wife.                   Accordingly, the

court    rejected    O’Connor’s       mitigation        arguments    in    favor     of

probation, and found a sentence of imprisonment appropriate.

            After   Booker,      a   sentencing        court   continues     to    make

factual findings concerning sentencing factors by a preponderance

of the evidence.      United States v. Morris, 

, 72 (4th

Cir. 2005), cert. denied, 

(2006).                     Long-standing

authority has permitted a sentencing court to consider any evidence

at sentencing that “has sufficient indicia of reliability,” see

USSG § 6A1.3(a), including “conduct underlying [an] acquitted

charge, so long as that conduct has been proved by a preponderance

of the evidence.”      United States v. Watts, 

, 156-57

(1997) (per curiam); United States v. Montgomery, 

, 249


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(4th Cir. 2001).    Based upon the evidence presented at sentencing,

the district court did not err in rejecting O’Connor’s mitigation

arguments and imposing a sentence of imprisonment.

          O’Connor also contends that he was falsely accused of

being involved in child pornography.        O’Connor was never arrested

or charged as officers found no evidence of child pornography when

O’Connor’s residence was searched; thus, this claim does not bear

on his conviction or this appeal.

          Finally, O’Connor argues that the Bureau of Prisons

(“BOP”) keeps attempting to place him in FCI Petersburg despite the

court’s recommendation that he be placed in FCI Butner due to

health concerns.     While this claim relates to the execution of

O’Connor’s sentence, which is not a proper subject for direct

appeal, we note that the record demonstrates that the court has

granted O’Connor’s several requests to delay his self-reporting

time until the BOP can accommodate him in Butner.           Moreover, from

O’Connor’s   most   recent   filing   and   his   return   address,   it   is

apparent that O’Connor is now housed at Butner.

          In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                 We

therefore affirm O’Connor’s conviction and sentence.          We also deny

O’Connor’s motion to substitute counsel.          This court requires that

counsel inform O’Connor, in writing, of the right to petition the

Supreme Court of the United States for further review. If O’Connor


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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 O’Connor.

          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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