Filed: Nov. 18, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4579 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SEBERT JUNIOR MAXWELL, III, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:07-cr-00228-1) Submitted: October 31, 2008 Decided: November 18, 2008 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary L
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4579 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SEBERT JUNIOR MAXWELL, III, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:07-cr-00228-1) Submitted: October 31, 2008 Decided: November 18, 2008 Before NIEMEYER, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lo..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4579
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SEBERT JUNIOR MAXWELL, III,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:07-cr-00228-1)
Submitted: October 31, 2008 Decided: November 18, 2008
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. John
Christopher Krivonyak, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sebert Junior Maxwell, III pled guilty to possession
with intent to distribute a quantity of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2000), and the district
court sentenced him to 151 months in prison and three years of
supervised release. On appeal, Maxwell’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issue of whether Maxwell’s 151-month
sentence as a career offender is reasonable. Maxwell has filed
a pro se supplemental brief raising the issues of whether he was
entitled to any reduction in his sentence under Kimbrough v.
United States, 128 S. Ct. 558 (2007), and whether he was
properly sentenced as a career offender. We affirm.
We review Maxwell’s sentence for abuse of discretion.
See Gall v. United States, 128 S. Ct. 586, 590 (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 guideline range. United States
v. Osborne,
514 F.3d 377, 387 (4th Cir.), cert. denied,
128 S. Ct. 2525 (2008). We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances.
Gall, 128 S. Ct. at 597. When
reviewing a sentence on appeal, we presume that a sentence
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within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
We have reviewed the record and conclude that the
district court did not err or abuse its discretion in sentencing
Maxwell, and his sentence at the low end of his advisory
guideline range is reasonable. The district court properly
determined that Maxwell was a career offender and his base
offense level was thirty-two under U.S. Sentencing Guidelines
Manual § 4B1.1(b), rather than the lower base offense level
under U.S.S.G. § 2D1.1(c)(8). After a three-level reduction for
acceptance of responsibility, Maxwell’s total offense level was
twenty-nine. With a criminal history category VI, Maxwell’s
advisory guideline range was 151 to 188 months in prison.
At sentencing, Maxwell conceded that he was properly
sentenced as a career offender under the guidelines, but he
argued that the district court should sentence him below his
guideline range because his cocaine base offenses involved
relatively small drug amounts and they did not involve a weapon
or violence. However, in reviewing Maxwell’s criminal history,
the district court found that he was not only a career offender
under the guidelines but a career offender in fact, since he had
made a career of drug trafficking. Considering the sentencing
factors under 18 U.S.C. § 3553(a) (2000), including the need to
promote respect for the law, to protect the public from his
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criminal activities, and to avoid unwarranted disparities in
sentencing, the district court reasonably concluded it was
appropriate to sentence Maxwell within his guideline range. The
court took Maxwell’s arguments in consideration, however, by
sentencing him at the low end of his guideline range.
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 his client, in writing,
of his 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 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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