UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4991
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ANTHONY CLYBURN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:04-cr-00050-jpj)
Submitted: September 7, 2007 Decided: September 18, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Barry L. Proctor, Abingdon, Virginia, for Appellant. Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Anthony Clyburn appeals his sixty-month sentence
following his jury conviction of possession of a firearm in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2000). The jury also found Clyburn guilty of six other
drug-related charges. After receiving the verdict, Clyburn moved
for a judgment of acquittal for possession of a firearm in relation
to a drug trafficking crime. The district court granted the
motion. The district court sentenced Clyburn to ninety-seven
months for each of the remaining counts, to run concurrently, and
to pay a $600 monetary penalty and $3,742.51 restitution.
The Government appealed the acquittal for possession of
a firearm in relation to a drug trafficking crime. After examining
the record, this court held the evidence was sufficient for a
reasonable fact-finder to convict Clyburn on that count. See
United States v. Clyburn, 181 F. App’x 343, 347-48 (4th Cir.),
cert. denied, 127 S. Ct. 314 (2006). We therefore reversed the
judgment of acquittal on that count and remanded the case to the
district court “to reinstate the jury’s verdict of guilty.”
On remand, after hearing several witnesses testify on
Clyburn’s behalf, the district court sentenced him to an additional
sixty months for possessing a firearm in relation to a drug
trafficking crime, to run consecutively to the sentence that had
been originally imposed on the remaining six counts of conviction.
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The district court also assessed an additional $100 monetary
penalty.
On appeal, Clyburn’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there were no
meritorious issues for appeal, but raising for review the issues of
whether the district court possessed the authority to review
Clyburn’s full sentence de novo and whether the district court
erred by not imposing a sentence less than sixty months’
imprisonment. Clyburn was advised of the right to file a pro se
supplemental brief, but has not done so.
This court remanded the case to the district court only
“to reinstate the jury’s verdict of guilty” for Clyburn’s
conviction of possession of a firearm in relation to drug
trafficking. Therefore, the district court was correct in
concluding that the only issue on remand was to impose a sentence
for the crime of possessing a firearm in relation to a drug
trafficking crime. See United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (stating that “the mandate of a higher court” when
remanding a case defines the scope of issues before a lower court).
As for the actual sentence imposed, “judges cannot depart
below a statutorily provided minimum sentence,” except upon the
Government’s motion on the basis of substantial assistance. United
States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), cert.
denied, 126 S. Ct. 288 (2005). A defendant convicted of possession
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of a firearm in relation to a drug trafficking crime must be
sentenced to at least sixty months’ imprisonment, a term that
cannot “run concurrently with any other term of imprisonment
imposed on the person.” 18 U.S.C. § 924(c)(1) (2000). The
district court imposed the mandatory minimum sentence of sixty
months’ imprisonment, and thus did not err by declining to sentence
Clyburn below the mandatory minimum penalty.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Clyburn’s sentence. This court
requires that counsel inform Clyburn, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Clyburn 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 Clyburn.
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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