US v. Auborn Smith, No. 08-4298 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4298 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AUBORN FRANK SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry F. Floyd, District Judge. (8:07-cr-00400-HFF-1) Submitted: December 16, 2008 Decided: December 22, 2008 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Lora E. Collins, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Leesa Washington, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Auborn 180-month Frank sentence Smith imposed appeals from following his his possession of a firearm by a convicted felon. conviction guilty plea and to Smith s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), addressing the validity of the plea and the reasonableness of the sentence, but stating that there was no merit to the appeal. Smith was advised of his right to file a pro se supplemental brief, but has not done so. Our review of the record discloses no reversible error; accordingly, we affirm Smith s conviction and sentence. We find that Smith s guilty plea was knowingly and voluntarily entered after a thorough hearing pursuant to Fed. R. Crim. P. 11. offense Smith was properly advised of his rights, the charged, and the mandatory sentence for the offense. minimum and the maximum The court also determined that there was an independent factual basis for the plea and that the plea was not coerced or influenced by any promises. See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). 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 also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). When sentencing a defendant, 2 a district court must: (1) properly calculate the guideline range; (2) treat the guidelines as advisory; (3) consider the factors set out in 18 U.S.C.A. ยง 3553(a) (West 2000 & Supp. 2008); and (4) explain its reasons for selecting a sentence. presume that a sentence Pauley, 511 F.3d at 473. within the properly sentencing guidelines range is reasonable. We calculated United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding application of rebuttable presumption of correctness of within guideline sentence). Here, the district court imposed a variance sentence of 180 months, which was below the advisory guideline range. Because the district court adequately explained the bases for the variance and because the amount of the variance was reasonable, we find no abuse of discretion in the sentence of 180 months of imprisonment. As required by Anders, we have reviewed the entire record and have found no meritorious issues for appeal. therefore affirm Smith s conviction and sentence. requires that counsel inform her client, in We This court writing, of his right to petition the Supreme Court of the United States for further filed, review. but If counsel the client believes requests that such that a a petition petition would be be frivolous, then counsel may move in this court for leave to 3 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 4
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