UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4543
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH EARL WHITAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:05-cr-00353-HEH-AL)
Submitted: December 20, 2006 Decided: January 23, 2007
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Amy L.
Austin, Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Charles Philip Rosenberg, United States Attorney,
Alexandria, Virginia; Matthew Childs Ackley, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Earl Whitaker pled guilty to two counts of making
false statements in connection with the purchase of a firearm, in
violation of 18 U.S.C. § 922(a)(6) (2000). He was sentenced to
seventy-two months for each offense; the sentences run
concurrently. He now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
one claim but stating that there are no meritorious grounds for
appeal. Whitaker has filed a pro se supplemental brief. We
affirm.
Prior to sentencing, Whitaker and the United States
agreed that he should be held accountable for three to seven
firearms. Because Whitaker committed the instant offenses
subsequent to a felony conviction for a controlled substance
offense, the probation officer assigned a base offense level of 20.
See U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2005). Two
levels were added because the offense, as stipulated, involved
between three and seven firearms. See USSG § 2K2.1(b)(1)(A). The
offenses were grouped together. See USSG §§ 3D1.2(d), 3D1.4.
Three levels were subtracted for acceptance of responsibility. See
USSG § 3E1.1. Whitaker’s total offense level was 19. His criminal
history score was 17, placing him in criminal history category VI.
His resulting advisory guideline range was 63-78 months. Whitaker
- 2 -
was statutorily subject to ten years in prison on each count. See
18 U.S.C. § 924(a)(2) (2000).
Whitaker contends that the two-level enhancement for
number of firearms was erroneous because this finding was based
largely on the statements of known drug addicts and because the
enhancement violates the Sixth Amendment. He also disputes two
criminal history points.
After United States v. Booker, 543 U.S. 220 (2005), a
sentence must be “within the statutorily prescribed range and . . .
reasonable.” United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005) (citations omitted). “[A] sentence imposed within the
properly calculated Guideline range . . . is presumptively
reasonable.” United States v. Green, 436 F.3d 449, 457 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006).
Here, the concurrent seventy-two-month sentences fall
within the applicable statutory range of up to ten years for each
offense. Moreover, the advisory guideline range was correctly
calculated. First, Whitaker agreed he was accountable for between
three and seven firearms. Given this agreement, the source of
information supporting the enhancement is irrelevant. Furthermore,
his concession renders his objection to the enhancement on Sixth
Amendment grounds and Booker meritless. We need not address
whether the two disputed criminal history points were correctly
assessed. Even without those points, Whitaker would have had
- 3 -
fifteen criminal history points, and would have remained in
criminal history category VI.
The district court imposed a sentence that was both
within the statutory range and the properly calculated advisory
guideline range. Additionally, the court considered the factors
set forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) when
imposing sentence. We conclude that the sentence is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm. This court requires counsel to inform her
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately set
forth in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
- 4 -