US v. Dwight Martin, No. 12-4115 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4115 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DWIGHT WILLIAM MARTIN, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:10-cr-00221-TDS-1) Submitted: July 30, 2012 Decided: August 2, 2012 Before GREGORY, SHEDD, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark Everette Edwards, EDWARDS & TRENKLE, PLLC, Durham, North Carolina, for Appellant. Clifton Thomas Barrett, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwight William Martin was originally sentenced to 160 months for: possession with intent to distribute Oxycodone, 21 U.S.C. § 841(a)(1) (2006) (Count One); possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006) (Count Four); and possession of a stolen firearm, 18 U.S.C. § 922(j) (2006) (Count Five). district We court vacated for the sentence consideration of and the remanded impact of to the United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), on Martin s sentence. United States resentenced on On remand, the district court granted the motion the to dismiss remaining Count two Four. counts Martin to was concurrent twenty-eight-month sentences and a three-year term of supervised release. Martin accordance with appeals. Anders Counsel v. has California, filed 386 U.S. a brief 738 in (1967), claiming that the term of supervised release is unreasonable but stating that there are no meritorious issues for review. Martin was advised of his right to file a pro se supplemental brief but has not filed such a brief. We affirm. I We review a sentence for reasonableness, applying an abuse-of-discretion standard. Gall v. United States, 552 U.S. 2 38, 51 (2007). This review requires consideration of both the procedural and substantive reasonableness of the sentence. Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). We first decide whether the district court correctly calculated the defendant s U.S.C. advisory § 3553(a) presented by Guidelines (2006) the factors, parties, selected sentence. and considered analyzed the sufficiently the 18 arguments explained the Id. at 575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). significant range, procedural error, we reasonableness of the sentence. If the sentence is free of then review the substantive Lynn, 592 F.3d at 575. Because Martin did not contend in the district court that the term of supervised release was unreasonable, our review of the claim is for plain error. Id. at 577. To establish plain error, a defendant must show that: (1) an error occurred; (2) the error substantial was plain; rights. Id. and (3) Even the if error these affected his conditions are satisfied, we may exercise our discretion to notice the error only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, quotation 507 U.S. 725, 732 (1993) (internal marks omitted). For the drug offense, Martin was statutorily subject to a supervised release term of at least three years. 3 See 21 U.S.C. § 841(b)(1)(C) (2006). Because the § 922(j) offense was a Class C felony, see 18 U.S.C. § 924(a)(2) (2006), 18 U.S.C. § 3559(a)(3) (2006), Martin was subject to a supervised release term of not more than three years. (2006). See 18 U.S.C. § 3583(b)(2) Martin acknowledged in his plea agreement that these were the applicable supervised release terms. The drug offense also was a Class C felony. Guideline in effect at the time, the Under the recommended term of supervised release for Class C felonies was at least two years but not more than three years. See U.S. Sentencing Guidelines Manual § 5D1.2(a)(2) (2008). We conclude that the three-year term of supervised release is procedurally and substantively reasonable. within the properly calculated Guidelines range. It falls The district court considered the applicable 18 U.S.C. § 3553(a) sentencing factors, arguments see 18 U.S.C. presented at § 3583(c) (2006), as sentencing. The court explained the chosen sentence.* well as the sufficiently Martin has not rebutted the presumption that his within-Guidelines sentence is reasonable. * In imposing sentence, the court remarked on Martin s possession of two firearms in connection with his drug dealing, his having been convicted of eluding arrest, and the need to both protect the public and to deter criminal behavior. 4 See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). There was no plain error. II In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm. This court requires that counsel inform Martin, in writing, of the right to petition the Supreme Court of the United States for further review. that a petition be filed, but counsel If Martin requests 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 Martin. 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 5
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