US v. Gabriel McMillian, No. 12-4388 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4388 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GABRIEL MCMILLIAN, a/k/a G-Mack, a/k/a Gabriel McMillan, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:10-cr-00968-MBS-6) Submitted: December 20, 2012 Decided: December 26, 2012 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Derek J. Enderlin, ROSS & ENDERLIN, P.A., Greenville, South Carolina, for Appellant. Julius Ness Richardson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gabriel McMillian pled guilty to conspiracy to possess with intent to distribute twenty-eight grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846 (2006). received a 262-month sentence. He On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning whether McMillian s sentence was reasonable. McMillian was advised of his right to file a pro se supplemental brief, but has not done so. brief. The Government declined to file a We affirm. Counsel directs our attention to the district court s determination that McMillian was a career offender based on its conclusion that McMillian began anew in 2009. conduct occurring charged conspiracy career offender under a United States, stopped drugs in 2005 and Thus, McMillian s 2005 conviction, based on in 2003, and deferential was therefore enhancement. 552 dealing We not relevant could review abuse-of-discretion U.S. 38, 41 be (2007). conduct used to to the support a McMillian s sentence standard. Gall In conducting v. this review, we must first ensure that the district court committed no significant procedural error, such as failing to properly calculate the Guidelines as Sentencing mandatory, Guidelines failing 2 to range, consider treating the 18 the U.S.C. § 3553(a) (2006) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. at 51. When imposing a sentence within the Guidelines . . . the [district court s] explanation need not be elaborate or lengthy because [G]uidelines sentences themselves are in many ways approximately two sentencing policy. tailored decades to of the individual and reflect attention to federal close United States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation marks omitted). Once we have determined that the sentence is free of procedural error, we consider the substantive reasonableness of the sentence, tak[ing] circumstances. into account the Gall, 552 U.S. at 51. totality of the If the sentence is within the appropriate Guidelines range, we apply a presumption United States v. on appeal that the sentence is reasonable. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a presumption is rebutted only if the defendant demonstrates that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). In this case, the district court applying the career offender enhancement. did not err in Further, the court heard argument from counsel and allocution from McMillian as to the appropriate sentence. Counsel requested a sentence at the 3 low end After of the Guidelines considering the § range 3553(a) and McMillian factors and received the it. advisory Guidelines range, the court concluded that a sentence at the low end of the Guidelines range adequately addressed the sentencing factors. rebut Neither counsel nor McMillian offers any grounds to the presumption on appeal that sentence was substantively reasonable. that the district court did not the within-Guidelines Accordingly, we conclude abuse its discretion in sentencing McMillian. 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 McMillian, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but counsel If McMillian requests that a petition be 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 McMillian. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4

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