UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4787
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ANTONIO MAURICE COOPER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
District Judge. (2:04-cr-41-1-BO)
Submitted: December 21, 2006 Decided: December 28, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, THE LAW OFFICES OF W. H. PARAMORE, III,
P.C., Jacksonville, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, Raleigh, North Carolina,
John Howarth Bennett, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Maurice Cooper pled guilty without a plea
agreement to possession of a firearm by a convicted felon and
aiding and abetting the same conduct, in violation of 18 U.S.C.
§§ 2, 922(g)(1), 924 (2000). The district court sentenced Cooper
to the statutory maximum of 120 months’ imprisonment. See 18
U.S.C. § 924(a)(2) (2000). Cooper timely appealed, and counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), contending there are no meritorious issues for appeal but
seeking review of whether the district court improperly enhanced
Cooper’s sentence even though a jury did not find those
enhancements beyond a reasonable doubt. Cooper did not file a pro
se supplemental brief, despite receiving notice of his right to do
so. Finding no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court is no longer bound by the range prescribed by the
sentencing guidelines. United States v. Green, 436 F.3d 449,
455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). In
determining the sentence, courts are still required to calculate
and consider the guidelines range, as well as the factors set forth
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). Id. In
sentencing defendants after Booker, district courts should apply a
preponderance of the evidence standard, taking into account that
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the resulting guideline range is advisory only. United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005). We will affirm a
post-Booker sentence if it is within the statutorily prescribed
range and is reasonable. Hughes, 401 F.3d at 546-47.
Treating the sentencing guidelines as advisory, the
district court correctly calculated Cooper’s range using a
preponderance of the evidence standard. Although this calculation
included conduct upon which state charges were dismissed,
sentencing courts have always maintained the power to consider the
broad context of a defendant’s relevant conduct. See United
States v. Watts, 519 U.S. 148, 152 (1997). While the sentencing
guidelines range was 235 to 293 months’ imprisonment, Cooper was
sentenced to the statutory maximum term of 120 months’
imprisonment. We conclude this sentence was reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.* We
therefore affirm Cooper’s conviction and sentence. This court
requires that counsel inform Cooper, in writing, of the right to
petition the Supreme Court of the United States for further review.
*
The Anders brief also references Cooper’s contention that his
trial counsel was ineffective. Claims of ineffective assistance of
counsel generally should be asserted on collateral review rather
than on direct appeal, unless proof of the claimed ineffective
assistance is apparent on the face of the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir.), cert. denied, 126 U.S.
1407 (2006). Because ineffective assistance is not apparent on the
face of the record, we decline to address the claim in this appeal.
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If Cooper 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 Cooper. 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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