US v. Sebert Maxwell, III, No. 08-4579 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4579 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SEBERT JUNIOR MAXWELL, III, Defendant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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 violation to of distribute 21 U.S.C. a quantity § 841(a)(1) of cocaine (2000), and base, the in 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 sentence as a career offender is reasonable. 151-month 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), properly sentenced as a career offender. and whether he was We affirm. We review Maxwell s sentence for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 590 (2007). The first the step in this review requires us to ensure that district court committed no significant procedural error, such as improperly calculating the guideline range. v. Osborne, 128 S. Ct. 514 2525 F.3d 377, (2008). 387 We (4th then Cir.), consider United States cert. the denied, substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. reviewing a sentence on Gall, 128 S. Ct. at 597. appeal, 2 we presume that a When sentence 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 guideline range determined that sentence is at the reasonable. Maxwell was a low The end of district career offender his advisory court properly and his base offense level was thirty-two under U.S. Sentencing Guidelines Manual § 4B1.1(b), rather than under U.S.S.G. § 2D1.1(c)(8). the lower base offense level 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 3 criminal activities, sentencing, avoid in concluded in The arguments reasonably disparities appropriate to sentence Maxwell within his guideline range. Maxwell s court unwarranted was took district to it court the and 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, believes but counsel 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 before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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