US v. George Odom, Jr., No. 08-4159 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4159 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE ODOM, JR., Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00190-NCT-1) Submitted: October 21, 2008 Decided: October 24, 2008 Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: George Odom, Jr., appeals from his conviction and 120month sentence imposed following his guilty plea to possession of a firearm by a convicted felon. Odom s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the four-level enhancement to Odom s offense level based on the finding that he possessed the firearm in connection with another felony, U.S. Sentencing Guidelines Manual (USSG) § 2K2.1 (2007), and the reasonableness of the stating that there was no merit to the appeal. se brief arguing criminal history challenging (2000). the these same category issues was constitutionality and sentence, Odom filed a pro contending improperly of 18 but that computed U.S.C. § his and 922(g)(1) Our review of the record discloses no reversible error; accordingly, we affirm Odom s conviction and sentence. Appellate courts review sentences imposed by district courts for standard. reasonableness, applying an abuse of discretion Gall v. United States, 128 S. Ct. 586, 597 (2007); see United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, a district court must: (1) properly calculate the guideline advisory; (3) consider range; the (2) factors treat set the out guidelines in 18 as U.S.C.A. § 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. Pauley, 511 F.3d at 473. 2 We presume that a sentence within the properly guidelines range is reasonable. calculated sentencing United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. rebuttable 2456, 2462-69 presumption (2007) (upholding of correctness court followed of application within of guideline sentence). The sentencing district Odom, and we find no the abuse sentence of 120 months of imprisonment. of necessary steps discretion in in the The district court did not clearly err in finding that the gun had the potential to facilitate the sale of marijuana, see USSG § 2K2.1, comment. (n.14), thus, we reject Odom s challenge to the four-level enhancement for possession of the firearm in connection with another felony offense. Odom argues that his criminal history was improperly calculated, asserting that he was sentenced on the same day for two of his prior convictions, therefore they should not have been counted separately. affect Odom s Because the error, if any, would not sentence, we find no plain error computation of Odom s criminal history category. in the See United States v. Olano, 507 U.S. 725, 732 (1993) (providing standard); USSG ch. 5, pt. A (sentencing table). Odom § 922(g)(1) as also a challenges violation of the 3 the constitutionality separation of federal of and state powers clause of the Constitution. this contention. We find no merit to See United States v. McKenzie, 99 F.3d 813, 820 (7th Cir. 1996); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir. 1995). As required by Anders, we have reviewed the entire record and have found no meritorious issues for appeal. therefore affirm Odom s conviction and sentence. requires that counsel inform his client, in We This court writing, of his right to petition the Supreme Court of the United States for further filed, review. but frivolous, If counsel then the client believes counsel may withdraw from representation. requests that such renew his that a a petition petition motion for be would be leave to 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 4
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