UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALVIN EUGENE MCSWAIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00079)
Submitted: October 31, 2006 Decided: December 1, 2006
Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, C. Nicks Williams, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(e)(2) (West 2000 & Supp. 2006), Alvin Eugene
McSwain was sentenced to ninety-six months in prison. McSwain
timely appealed. McSwain’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that in his
opinion there are no meritorious grounds for appeal, but
questioning the validity of McSwain’s conviction on the ground that
the firearm McSwain possessed was inoperable and questioning the
reasonableness of McSwain’s sentence. McSwain was notified of his
right to file a pro se supplemental brief but did not file one.
McSwain first asserts that his conviction under
§ 922(g)(1) is invalid because the pistol he possessed was missing
a firing pin and therefore was inoperable. However, it is well
established that a weapon does not have to be operable to qualify
as a firearm under § 922(g)(1). United States v. Willis, 992 F.2d
489, 491 n.2 (4th Cir. 1993); see also United States v. Brown, 117
F.3d 353, 355-56 (7th Cir. 1997).
Next, McSwain argues that the district court erred by
imposing a sentence at the top of the guideline range. Following
the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), we review sentences for reasonableness. A sentence
imposed within the properly calculated guideline range is
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presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
McSwain asserts that the sentence imposed by the district
court is unreasonable because he contends that the trial court
failed to take into consideration the special circumstances of his
case, as required by 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006). A sentencing court is presumed to have considered the
factors set out in § 3553(a) unless the record indicates otherwise
and is not required to explicitly discuss each § 3553(a) factor.
United States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000)
(dealing with denial of motion to reduce sentence); see also United
States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition for
cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659),
and United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(holding that “nothing in Booker requires the district court to
state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors”).
In imposing McSwain’s sentence, the district court stated
that it had considered the arguments of both the defense and the
government and concluded that McSwain’s long and violent criminal
history and the nature of the instant offense justified a sentence
at the top of the guideline range. Because the district court
adequately explained the basis for its sentencing decision, we find
the resulting ninety-six-month sentence to be reasonable. See
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United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.
06-5439); Green, 436 F.3d at 457.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm McSwain’s conviction and sentence. This court
requires that counsel inform McSwain, in writing, of the right to
petition the Supreme Court of the United States for further review.
If McSwain 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 McSwain.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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