UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES LANDON WHITTAKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:06-cr-00758-RBH)
Submitted: August 22, 2007 Decided: August 31, 2007
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Aileen P. Clare, Assistant Federal Public
Defenders, Florence, South Carolina, for Appellant. Alfred William
Walker Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Charles Landon Whittaker
pled guilty to being a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g)(1) (2000). The
district court sentenced Whittaker to a seventy-one-month term of
imprisonment. Whittaker appeals his conviction and sentence. His
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), challenging the adequacy of the colloquy held in
accordance with Fed. R. Crim. P. 11, the district court’s
application of the cross-reference in U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(c)(1)(A) (2005), and the reasonableness of
Whittaker’s sentence. Counsel states, however, that, in his view,
there are no meritorious issues for appeal. Whittaker was informed
of his right to file a pro se supplemental brief but has not done
so. We affirm.
Counsel raises as a potential issue the adequacy of the
plea hearing but does not specify any deficiencies in the district
court’s Rule 11 inquiries. Because Whittaker did not move in the
district court to withdraw his guilty plea, any error in the
Rule 11 hearing is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing standard).
Our careful review of the record convinces us that the district
court fully complied with the mandates of Rule 11 in accepting
Whittaker’s guilty plea and ensured that Whittaker entered his plea
- 2 -
knowingly and voluntarily and that the plea was supported by an
independent factual basis. See United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991).
Counsel next questions whether the district court erred
in applying the cross-reference in § 2K2.1(c)(1)(A), which directs
the application of USSG § 2X1.1 if the defendant used or possessed
a firearm in connection with another offense. Here, at the plea
hearing, Whittaker stipulated to the application of the
cross-reference in light of his use of a double-barrel shotgun in
the commission of an assault and battery with intent to kill.
Thus, we find that the district court properly applied the
cross-reference in determining Whittaker’s offense level.
Finally, counsel suggests that Whittaker’s sentence is
unreasonable. In imposing a sentence after United States v.
Booker, 543 U.S. 220 (2005), a court still must calculate the
applicable guideline range after making the appropriate findings of
fact and consider the range in conjunction with other relevant
factors under the guidelines and 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2007). United States v. Moreland, 437 F.3d 424, 432 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). This court will
affirm a post-Booker sentence if it “is within the statutorily
prescribed range and is reasonable.” Id. at 433 (internal
quotation marks and citation omitted). “[A] sentence within the
proper advisory Guidelines range is presumptively reasonable.”
- 3 -
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see
Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
application of rebuttable presumption of reasonableness to within-
guidelines sentence).
The district court sentenced Whittaker only after
considering and examining the sentencing guidelines and the
§ 3553(a) factors, as instructed by Booker. In addition,
Whittaker’s seventy-one-month sentence is the top of the properly
calculated advisory guideline range and well within the ten-year
statutory maximum sentence set forth in 18 U.S.C.A. § 924(a)(2)
(West 2000 & Supp. 2007). Neither Whittaker nor the record
suggests any information so compelling as to rebut the presumption
that a sentence within the properly calculated guideline range is
reasonable. We therefore 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 the district court’s judgment. This court
requires that counsel inform his 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 in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
- 4 -
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
- 5 -