US v. Michael Lee, No. 09-4869 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4869 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL ANTWAN LEE, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:08-cr-00040-01; 7:09-cr-00007-sgw-2) Submitted: August 19, 2010 Decided: August 26, 2010 Before MOTZ, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Allegra M.C. Black, Assistant Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Jennie L.M. Waering, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Antwan Lee pled guilty pursuant to a written plea agreement to possession of a firearm by a convicted felon, in violation malicious U.S.C. Lee s of 18 damage to § 844(i) a has 386 §§ 922(g), building (2006). attorney California, U.S.C. He filed U.S. 738 by fire, received a 924(e) brief (1967), a in (2006), violation 168-month pursuant to asserting, and of 18 sentence. Anders in v. counsel s opinion, there are no meritorious grounds for appeal but raising the issues of whether Lee s waiver of appeal rights effective and whether Lee s sentence is reasonable. was Lee was notified of his right to file a pro se supplemental brief but has not done so. Finding no reversible error, we affirm. Counsel first challenges the enforceability of Lee s appellate waiver. However, the Government has not filed a responsive brief or motion to dismiss asserting the waiver, and we do not sua States v. sponte enforce Blick, 408 F.3d appellate waivers. 162, 168 (4th Cir. See United 2005) (citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)). Accordingly, we conclude this issue is moot. We review a sentence for abuse of discretion. United States, 552 U.S. 38, 51 (2007). Gall v. The first step in this review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating 2 the guideline range. (4th Cir. United States v. Carter, 564 F.3d 325, 328 2009). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Lee was found to Gall, 552 U.S. at 51. be an armed career criminal and, accordingly, he was subject to a statutorily mandated minimum of See 18 U.S.C. § 924(e). 180 months imprisonment. His advisory guidelines range was 180 to 210 months imprisonment. Sentencing Guidelines (requiring the Manual statutorily ( USSG ) required See U.S. § 5G1.1(c)(2) minimum sentence minimum of the advisory guideline sentence). (2008) be the The Government, however, filed a motion pursuant to USSG § 5K1.1 based on Lee s substantial assistance, recommending a sentence of fourteen years imprisonment, a sentence below the advisory guidelines range and below the statutory minimum. After considering the 18 U.S.C. § 3553(a) (2006) factors, the district court sentenced Lee to fourteen years imprisonment. We have reviewed the record and conclude that the district court did not abuse its discretion in sentencing Lee and that his sentence is reasonable. 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 Lee, in writing, of his 3 right to petition the Supreme Court of the United States for further review. If Lee requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Lee. facts this We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 4
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