US v. Johmar Galloway, No. 12-4274 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4274 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHMAR MONTE GALLOWAY, a/k/a Nutso, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, District Judge. (7:11-cr-00106-FL-1) Submitted: October 10, 2012 Decided: October 17, 2012 Before SHEDD, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johmar Monte guilty to pleading Galloway appeals conspiracy to his possess sentence with after intent to distribute and to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (2006), and possession of a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). year in Galloway s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in counsel s opinion, that there are no meritorious grounds for appeal, but raising the issue of whether the district court erred by denying Galloway federal benefits for five years pursuant to 21 U.S.C. § 862 (2006). Galloway was notified of his right to file a pro se supplemental brief but has not done so. We review discretion standard. a (2007). that sentence under a deferential abuse-of- Gall v. United States, 552 U.S. 38, 51 The first step in this review requires us to ensure the error, We affirm. district such as court committed improperly no calculating significant the procedural Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately explain the sentence. Carter, 564 F.3d 325, 328 (4th Cir. 2009). 2 United States v. If the sentence is procedurally reasonable, we then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Gall, 552 U.S. at 51. We presume that a sentence within or below a properly calculated Guidelines range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). The district court determined that Galloway would be ineligible for federal benefits for five years under 21 U.S.C. § 862(b)(1)(B) (2006). On appeal, he argues that the penalties under the statute are inapplicable to him pursuant to 21 U.S.C. § 862(e) (2006) because he pled guilty. However, that provision applies to Government witnesses and includes any individual who cooperates prosecution of or a testifies Federal or with State the Government offense Government witness protection program. Id. or who in is the in a We have reviewed the record and conclude that the district court did not err or abuse its discretion in denying Galloway these benefits. 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 or her client, in writing, of his or her right to petition the Supreme Court of the United States for further review. that a petition be filed, but 3 counsel If the client 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 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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