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United States v. Johnny Smith, II, 16-4038 (2016)

Court: Court of Appeals for the Fourth Circuit Number: 16-4038 Visitors: 4
Filed: Aug. 22, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4038 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY C. SMITH, II, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00242-WO-1) Submitted: August 18, 2016 Decided: August 22, 2016 Before WILKINSON, KING, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C.
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-4038


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNY C. SMITH, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00242-WO-1)


Submitted:   August 18, 2016                 Decided:   August 22, 2016


Before WILKINSON, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.    Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Johnny C. Smith, II, pled guilty to one count of distributing

cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(c) (2012).    The district court sentenced him to 84 months’

imprisonment and five years of supervised release.                  On appeal,

Smith’s   attorney   has    filed   a       brief   pursuant   to   Anders   v.

California, 
386 U.S. 738
(1967), asserting, in his opinion, that

there are no meritorious grounds for appeal, but questioning

whether the district court erred when it imposed Smith’s sentence.

Smith was informed of his right to file a pro se supplemental brief

but has not done so.       Finding no error, we affirm.

     We review Smith’s sentence for abuse of discretion.               Gall v.

United States, 
552 U.S. 38
, 51 (2007).              “The first step in this

review requires us to ‘ensure that the district court committed no

significant procedural error, such as . . . improperly calculating

. . . the Guidelines range.’”       United States v. Osborne, 
514 F.3d 377
, 387 (4th Cir. 2008) (quoting 
Gall, 552 U.S. at 51
).               We then

consider the substantive reasonableness of the sentence imposed,

taking into account the totality of the circumstances.               
Gall, 552 U.S. at 51
.   At this stage of review, we presume that a sentence

within a properly calculated guideline range is reasonable. United

States v. Allen, 
491 F.3d 178
, 193 (4th Cir. 2007).             Additionally,

we “review the district court’s calculation of the quantity of

drugs attributable to a defendant for sentencing purposes for clear

                                        2
error.”    United States v. Slade, 
631 F.3d 185
, 188 (4th Cir. 2011)

(quotation and citation omitted).

     We have reviewed the record and find Smith’s sentence is both

procedurally and substantively reasonable.          The district court did

not err when it reduced the drug quantity attributable to Smith.

The district court correctly determined Smith faced an adjusted

offense level, absent the career offender guideline, of twenty-

five, and a criminal history category of three.                    Finally, the

district    court   reasonably     determined     that   a    sentence     within

Smith’s     advisory   guideline    range   of     70    to   87    months     was

appropriate.

     In accordance with Anders, we have reviewed the entire record

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

therefore    affirm    the   district   court’s    judgment.        This     court

requires that counsel inform Smith, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Smith 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 Smith.

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                       AFFIRMED

                                        3

Source:  CourtListener

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