United States v. Bronson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4443

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN JAMES BRONSON, a/k/a Little B,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cr-00249-D)

Submitted: February 4, 2008 Decided: February 27, 2008

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Carl G. Ivarsson, Jr., COOK & IVARSSON, Fayetteville, North
Carolina, for Appellant. Anne Margaret Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Brian James Bronson appeals his conviction and the 262-

month sentence imposed following his guilty plea to one count of

knowingly and intentionally distributing fifty grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000).

Bronson’s attorney filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), certifying there are no

meritorious grounds for appeal, but questioning the sufficiency of

Bronson’s Fed. R. Crim. P. 11 hearing and the reasonableness of his

sentence. The Government did not file a brief, and although

advised of his right to do so, Bronson has declined to file a pro

se supplemental brief. Finding no reversible error, we affirm.

We first conclude the district court fully complied with

the requirements of Rule 11 in conducting Bronson’s plea hearing.

The district court advised Bronson regarding his rights under

federal law, the nature and elements of the charges to which he was

pleading guilty, and the applicable statutory mandatory minimum and

statutory maximum and period of supervised release. The court also

questioned Bronson to ensure he was competent to plead guilty.

Bronson further informed the court that, prior to signing the plea

agreement, he had discussed it with his attorney, with whom he was

satisfied. The district court further accepted the Government’s

proffer of evidence to establish a factual basis for Bronson’s

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guilty plea. As noted by counsel in his Anders brief, there was no

Rule 11 error.

We next address Bronson’s contention that his sentence is

unreasonable. As recently determined by the Supreme Court,

“[r]egardless of whether the sentence imposed is inside or outside

the Guidelines range, the appellate court must review the sentence

under an abuse-of-discretion standard.” Gall v. United States, 128

S. Ct. 586, 597 (2007). We remain charged with reviewing sentences

for reasonableness, id. at 594, 597, which requires that we

consider both the procedural and substantive reasonableness of a

sentence. Id. at 597.

In determining whether a sentence is procedurally reasonable,

this court first assesses whether the district court properly

calculated the defendant’s advisory Guidelines range. Id. at 596-

97. This court must then consider whether the district court

failed to consider the § 3553(a) factors, selected a sentence based

on “clearly erroneous facts,” or failed to sufficiently explain the

selected sentence. Id. at 597; United States v. Pauley, __ F.3d

__, 2007 WL 4555520, *5 (4th Cir. Dec. 28, 2007). Finally, we

review the substantive reasonableness of the sentence, “taking into

account the ‘totality of the circumstances, including the extent of

any variance from the Guidelines range.’” Pauley, __ F.3d __, 2007

WL 4555520, *5 (quoting Gall, 128 S. Ct. at 597). This court

affords sentences that fall within the properly calculated

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Guidelines range a presumption of reasonableness, a presumption

permitted by the Supreme Court. Rita v. United States, __ U.S. __,

127 S. Ct. 2456, 2459, 2462 (2007).

Bronson did not object to the presentence report (“PSR”)

accepted by the district court. Significantly, Bronson raised no

challenge to the inclusion of either of the two prior felony drug

convictions that formed the basis for his designation as a career

offender. U.S. Sentencing Guidelines Manual § 4B1.1 (2006)

(“USSG”). Because the statutory maximum applicable to the charged

offense was life imprisonment, see 21 U.S.C.A. § 841(b)(1)(A) (West

1999 & Supp. 2007), Bronson’s career offender designation elevated

his offense level to 37 and his criminal history category to VI.

USSG § 4B1.1(b) (2006). Bronson’s base offense level was then

reduced three levels for acceptance of responsibility, resulting in

a total adjusted offense level of 34. This, coupled with the

category VI criminal history, yielded a sentencing range of 262-327

months’ imprisonment. USSG ch. 5, pt. A, sentencing table (2006).

The district court properly calculated Bronson’s advisory

Guidelines range and imposed a sentence at the bottom of that

range. As our review of the record reveals no procedural or

substantive defect in Bronson’s sentence, we conclude Bronson

cannot overcome the presumption of reasonableness that attaches to

his sentence. Rita, 127 S. Ct. at 2459, 2462.

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 Because this case is before us pursuant to Anders, we

note that neither the issuance of the Supreme Court’s decision in

Kimbrough v. United States, __ U.S. __, 128 S. Ct. 558 (2007), nor

the United States Sentencing Commission’s decision regarding the

retroactivity of Amendment 706,1 which lowered the base offense

level for crack offenses effective November 1, 2007, commands a

different result. Because Bronson was designated a career

offender, his base offense level of 37 was determined by the

statutory maximum sentence of life imprisonment applicable to his

offense under 21 U.S.C.A. § 841(b)(1)(A), not the drug quantity

found attributable to him. See USSG § 4B1.1(b)(A) (2006).2 Thus,

although the base offense level corresponding to the determined

drug quantity would be lower as a result of Amendment 706, the

amendment is ultimately of no consequence because calculation of

Bronson’s base offense level was driven by the career offender

designation. See USSG §§ 2D1.1(c)(3), 2D1.1 cmt. n.10(D)(I) (2007)

(calculating sentencing range using drug equivalency table as

amended would result in base offense level of 34).

In accordance with Anders, we have reviewed the entirety

of the record and found no meritorious issues. Accordingly, we

affirm the district court’s judgment. We require that counsel

1
The amendment is retroactive effective March 3, 2008. See
http://www.ussc.gov/PRESS/rel121107.htm (Dec. 11, 2007).
2
The Sentencing Commission did not amend USSG § 4B1.1 in 2007.

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inform Bronson, in writing, of the right to petition the Supreme

Court of the United States for further review. If Bronson 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 Bronson. 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

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