Filed: Dec. 26, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4388 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GABRIEL MCMILLIAN, a/k/a G-Mack, a/k/a Gabriel McMillan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:10-cr-00968-MBS-6) Submitted: December 20, 2012 Decided: December 26, 2012 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Aff
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4388 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GABRIEL MCMILLIAN, a/k/a G-Mack, a/k/a Gabriel McMillan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:10-cr-00968-MBS-6) Submitted: December 20, 2012 Decided: December 26, 2012 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4388
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GABRIEL MCMILLIAN, a/k/a G-Mack, a/k/a Gabriel McMillan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, Chief District
Judge. (1:10-cr-00968-MBS-6)
Submitted: December 20, 2012 Decided: December 26, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Derek J. Enderlin, ROSS & ENDERLIN, P.A., Greenville, South
Carolina, for Appellant. Julius Ness Richardson, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gabriel McMillian pled guilty to conspiracy to possess
with intent to distribute twenty-eight grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846 (2006). He
received a 262-month sentence. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether McMillian’s sentence was reasonable.
McMillian was advised of his right to file a pro se supplemental
brief, but has not done so. The Government declined to file a
brief. We affirm.
Counsel directs our attention to the district court’s
determination that McMillian was a career offender based on its
conclusion that McMillian stopped dealing drugs in 2005 and
began anew in 2009. Thus, McMillian’s 2005 conviction, based on
conduct occurring in 2003, was not relevant conduct to the
charged conspiracy and therefore could be used to support a
career offender enhancement. We review McMillian’s sentence
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). In conducting this
review, we must first ensure that the district court committed
no significant procedural error, such as failing to properly
calculate the Sentencing Guidelines range, treating the
Guidelines as mandatory, failing to consider the 18 U.S.C.
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§ 3553(a) (2006) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence. Id. at 51. “When imposing a sentence within the
Guidelines . . . the [district court’s] explanation need not be
elaborate or lengthy because [G]uidelines sentences themselves
are in many ways tailored to the individual and reflect
approximately two decades of close attention to federal
sentencing policy.” United States v. Hernandez,
603 F.3d 267,
271 (4th Cir. 2010) (internal quotation marks omitted).
Once we have determined that the sentence is free of
procedural error, we consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. If the sentence is
within the appropriate Guidelines range, we apply a presumption
on appeal that the sentence is reasonable. United States v.
Mendoza-Mendoza,
597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only if the defendant demonstrates “that
the sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda,
445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
In this case, the district court did not err in
applying the career offender enhancement. Further, the court
heard argument from counsel and allocution from McMillian as to
the appropriate sentence. Counsel requested a sentence at the
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low end of the Guidelines range and McMillian received it.
After considering the § 3553(a) factors and the advisory
Guidelines range, the court concluded that a sentence at the low
end of the Guidelines range adequately addressed the sentencing
factors. Neither counsel nor McMillian offers any grounds to
rebut the presumption on appeal that the within-Guidelines
sentence was substantively reasonable. Accordingly, we conclude
that the district court did not abuse its discretion in
sentencing McMillian.
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 McMillian, in writing,
of the right to petition the Supreme Court of the United States
for further review. If McMillian 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 McMillian. 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
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