US v. Roger Wesley, No. 12-5028 (4th Cir. 2013)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5028 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROGER BERNARD WESLEY, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:12-cr-00202-NCT-1) Submitted: July 12, 2013 Before WYNN and Circuit Judge. FLOYD, Decided: Circuit Judges, and July 23, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina, for Appellant. Ripley Rand, United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Roger 110-month Bernard sentence Wesley imposed appeals following his his conviction guilty and plea to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal, Wesley s 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 sentencing errors. the district court committed two The Government has filed a response brief, asserting that the district court committed no error and that we lack authority to review one of the issues raised. filed a pro se supplemental brief raising a Wesley has claim under Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2155 (2013) (holding that any fact increasing the mandatory minimum sentence applicable to an offense must be submitted to the jury and found beyond a reasonable doubt). For the reasons that follow, we affirm. We review a sentence imposed by a district court for reasonableness. (2007). We Gall v. United States, 552 U.S. 38, 46, 51 first procedural error, Guidelines range. calculations, we examine the including Id. review at sentence improper 51. the In for significant calculation of assessing [sentencing] the Guidelines court s factual findings for clear error, its legal conclusions de novo, and 2 unpreserved arguments for plain error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (citations omitted). If we find the sentence procedurally reasonable, we also examine its substantive reasonableness circumstances. Gall, 552 under U.S. at the 51. totality A of the within-Guidelines sentence is presumptively reasonable, and the defendant bears the burden to rebut this presumption by demonstrating that the sentence is unreasonable factors. when measured against the § 3553(a) United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Counsel inappropriately possession of first questions applied a a firearm whether four-level in the district enhancement connection with for another court use or felony offense, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 2K2.1(b)(6)(b) (2011). Because Wesley withdrew his objection on this ground in the district court, we review the issue for plain error. See Strieper, 666 F.3d at 292. A firearm is used or possessed in connection with another offense if [it] facilitates or has a tendency to facilitate the other offense. United States v. Hampton, 628 F.3d (internal 654, alteration 663 omitted); requirement effect (4th with is Cir. see satisfied respect to 2010) USSG if the § 2K2.1 the 3 cmt. firearm other quotation had offense, n. marks 14(A). some This purpose including and if or the firearm was present for protection or to embolden the actor. United States v. Alvarado Perez, 609 F.3d 609, 612-13 (4th Cir. 2010) (internal quotation marks and alterations omitted). The Guidelines commentary further explains that the enhancement is appropriate in the case of a drug trafficking offense in which a firearm is found in close proximity to drug-manufacturing materials, or drug paraphernalia. § 2K2.1 cmt. n. 14(B). written factual basis drugs, See USSG Based on the facts admitted in the for Wesley s plea and adopted in the presentence report, we discern no error, plain or otherwise, in the court s application of this enhancement to Wesley. * Counsel next questions whether the district court should have considered imposing a lower sentence because the three-level downward adjustment to his Guidelines range for acceptance of responsibility, for which he bargained in his plea agreement, had little impact on his Guidelines range due to the statutory cap of 120 months applicable to his sentence. * We find In his pro se supplemental brief, Wesley also challenges this enhancement under the Supreme Court s recent decision in Alleyne. Because neither the enhancement nor its underlying facts had an impact on the statutory sentencing range applicable to Wesley s offense, we conclude, without difficulty, that Wesley s argument is meritless. See Alleyne, 133 S. Ct. at 2163 ( Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. ). 4 this argument unavailing. he did not benefit adjustment; but subject a to received. for Initially, Wesley cannot claim that from the that Guidelines acceptance adjustment, range of Wesley higher than responsibility would the have been sentence he Because he received a sentence at the bottom of his applicable Guidelines range, Wesley effectively argues that the court erred based on in the failing statutory to depart cap. below However, the we Guidelines lack range authority to review the court s decision not to depart downward, as nothing in the record indicates that the court failed to understand its authority to do so. See United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Nor do we conclude that Wesley s assertion serves to rebut the presumption of substantive reasonableness accorded his within-Guidelines sentence. See Montes-Pineda, 445 F.3d at 379. In accordance with Anders, we have reviewed the 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 Wesley, in writing, of the right to petition the Supreme review. If Wesley Court of requests the that United a States petition be for further filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court 5 for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Wesley. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.