US v. James McClure, No. 13-4293 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4293 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ALAN MCCLURE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:11-cr-00055-RLV-DCK-1) Submitted: November 19, 2013 Before WYNN and Circuit Judge. FLOYD, Circuit Decided: November 21, 2013 Judges, and HAMILTON, Senior Affirmed by unpublished per curiam opinion. Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, 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 Unpublished opinions are not binding precedent in this circuit.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: James Alan McClure pled guilty to receiving child pornography that has been shipped or transported in or affecting interstate or § 2252A(a)(2) containing explicit (2012) foreign (2012) visual imprisonment (Count in 2). each count to has filed a 386 U.S. 738 18 U.S.C. possessing a hard drive a minor 18 engaged U.S.C. sentenced on California, of of was counsel appeal, violation and of violation He in 1); depictions conduct, (Count commerce, be brief (1967), sexually § 2252(a)(4)(B) to served in 180 months concurrently. pursuant asserting to On Anders there of are v. no meritorious grounds for appeal, but raising the following issue: whether McClure s degree sexual prior offense North Carolina triggered the conviction for fifteen-year second mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) (2012). For the reason that follow, we affirm. McClure s prior state offense, which involved forcing a fourteen-year-old girl to perform oral sex, was a proper predicate offense for the enhancement under § 2252A(b)(1). United States (concluding v. that Spence, 661 involving F.3d a 194, minor 197 (4th modifies Cir. only See 2011) abusive sexual conduct and applying modified categorical approach to determine proper enhancement). predicate conviction for § 2252A(b) We therefore conclude that the district court 2 properly used McClure s above state offense to impose a mandatory minimum fifteen-year sentence. In accordance with Anders, we have reviewed the record in this case, including the issues raised in McClure s pro se supplemental brief, and have found no meritorious issues for appeal. McClure s guilty plea revealed he knowingly and voluntarily pled guilty, United States v. Vonn, 535 U.S. 55, 58 (2002), and that the hearing complied with Fed. R. Crim. P. 11. We further find no abuse of discretion in McClure s sentence, see Gall v. United States, 552 U.S. 38, 41, 51 (2007) (providing review standard), properly and calculated note advisory that he was Sentencing sentenced Guidelines within range a in which the court expressly considered 18 U.S.C. § 3553(a) (2012) sentencing factors. See United States v. Mendoza Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (noting appellate presumption of reasonableness for sentence imposed within a properly calculated Guidelines range). We therefore affirm McClure s conviction and sentence. This court requires that counsel inform McClure, in writing, of the right to petition the Supreme Court of the United States for further review. If McClure 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 3 was served on McClure. 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