US v. Lamar Murphy, No. 13-4222 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4222 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LAMAR RYAN MURPHY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:10-cr-00231-FDW-1) Submitted: November 22, 2013 Decided: December 18, 2013 Before MOTZ, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lamar Ryan Murphy appeals his conviction and the 120month sentence guilty plea violation of imposed to by possessing 18 U.S.C. the district firearms as § 922(g)(1). court a following convicted On appeal, his felon, counsel in 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 sentenced Murphy. whether the district court appropriately Murphy was notified of his right to file a pro se supplemental brief but has not done so. has declined to file a response brief. The Government For the reasons that follow, we affirm. We review criminal sentences for reasonableness, applying a deferential abuse-of-discretion standard. United States, 552 U.S. 38, 41 (2007). sentence for significant procedural Gall v. We first review the error, including improper calculation of the Guidelines range, insufficient consideration of the 18 U.S.C. § 3553(a) factors, and inadequate explanation of the sentence imposed. See United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). If we find no such procedural error, we examine the substantive reasonableness of a sentence in light of the the totality of the circumstances. sentence imposed must be Gall, 552 U.S. at 51. sufficient, 2 but not greater The than necessary, U.S.C. § to satisfy 3553(a). reasonable on the A appeal, purposes of sentencing. within-Guidelines and the sentence defendant bears See is the 18 presumed burden of rebut[ting] the presumption by demonstrating 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). We have thoroughly reviewed the record and conclude that Murphy s sentence is reasonable. We recognize that the government s objections to the presentence report ( PSR ) were untimely, and that it did not explain the delay. Nonetheless, we find no abuse of discretion in the district court s decision to adopt the revised PSR, which incorporated the government s recommended changes. See United States v. Archuleta, 128 F.3d 1446, 1452 n.12 (4th Cir. 1997) (recognizing that an explicit finding of good cause for delay is not always required). Murphy s counsel agreed to permit the government to file untimely objections, pro se objection. respond to resulting the notwithstanding Murphy s subsequent Murphy was given ample time to research and objections, enhancements at and he did sentencing. not See object Fed. R. to the Crim. P. 32(b)(2); see also United States v. Young, 140 F.3d 453, 457 (2d Cir. 1998) (recognizing that, although sentencing court has discretion to deem late objections forfeited, it may impose 3 sentencing enhancements belatedly suggested by the Government and not contained in the PSR, provided the defendant is afforded an adequate submission opportunity and any to respond revision of the to the PSR Government s (internal late citation omitted)). The district court properly calculated the Guidelines range and imposed a sentence within that range. It considered the parties arguments and provided a detailed explanation of its sentence, thoroughly grounded in the § 3553(a) factors. In addition, presumption of reasonableness accorded to his within-Guidelines sentence. See Murphy never rebutted Montes-Pineda, 445 F.3d at 379. the We therefore find no abuse of discretion. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Murphy s conviction and sentence. This court requires that counsel inform Murphy, in writing, of the right to petition the Supreme Court of the United States for further review. If Murphy requests that a petition be filed, but counsel 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 Murphy. 4 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 5