UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRONE MCNAIR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:06-cr-00088-JFB)
Submitted: November 15, 2007 Decided: November 20, 2007
Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen J. Weisbrod, WEISBROD & PHILLIPS, P.C., Hampton, Virginia,
for Appellant. Dee Mullarkey Sterling, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone McNair pled guilty to driving under the influence
of alcohol (fourth offense) (“DUI”), and driving after his license
was revoked (after three prior DUI offenses), in violation of 18
U.S.C.A. § 13 (2007), assimilating Va. Code Ann. §§ 18.2-266,
46.2-391.2 (2005). He was sentenced to four years on the DUI
offense and three years on the remaining count, to be served
consecutively. McNair’s attorney filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious grounds for appeal, but raising the
issue of whether McNair’s sentence was reasonable. Although
informed of his right to do so, McNair has not filed a supplemental
brief.
McNair did not object to his sentence; thus, we review
for plain error. United States v. Osborne, 345 F.3d 281, 284 (4th
Cir. 2003). The Sentencing Guidelines apply to assimilated crimes,
and the Guideline sentence for such crimes must fall within the
minimum and maximum terms set by state law. United States v.
Young, 916 F.2d 147, 150 (4th Cir. 1990). If, as here, there is no
analogous guideline, the provisions of 18 U.S.C.A. § 3553 (West
2000 & Supp. 2007) control. U.S. Sentencing Guidelines Manual
§ 2X5.1 comment. (back’d) (2006). In addition, review is limited
in this case to whether the sentence was imposed in violation of
the law or is plainly unreasonable. See 18 U.S.C. § 3742(e)(4)
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(2000). Given the court’s consideration of McNair’s prior
convictions and history of alcohol abuse, as well as the remaining
§ 3553 factors, the sentence, which is below the maximum, is not
plainly unreasonable.
In accordance with the requirements of Anders, we have
reviewed the record for potential errors and have found none.
Therefore, we affirm McNair’s convictions and sentence. 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 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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