UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4032
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMON TERRELL HEYWARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:07-cr-00731-PMD-1)
Submitted: June 25, 2008 Decided: July 21, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. John Charles Duane, Eric John Klumb,
Assistant United States Attorneys, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damon Terrell Heyward pled guilty to possessing a firearm
and ammunition after having been convicted of a felony in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), and the district court
sentenced him to 110 months in prison and three years of supervised
release. On appeal, Heyward’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting, in her
opinion, there are no meritorious grounds for appeal but raising
the issues of whether the district court complied with Fed. R.
Crim. P. 11 when it accepted Heyward’s guilty plea, and whether the
district court’s sentence was reasonable. Heyward has filed a pro
se supplemental brief raising the issues of whether he is entitled
to resentencing based on the recent amendment to U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 4A1.2(a)(2) (2007), and whether
the district court plainly erred in calculating his guideline
range. Finding no reversible error, we affirm.
Appellate counsel first questions whether the district
court complied with Fed. R. Crim. P. 11 in accepting Heyward’s
guilty plea, but she alleges no error by the district court and
concludes the court fully complied with the rule. Because Heyward
did not move in the district court to withdraw his guilty plea, we
review any challenge to the adequacy of the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
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Cir. 2002). We have reviewed the record and find no plain error in
the district court’s acceptance of Heyward’s guilty plea.
Appellate counsel next questions whether the district
court’s sentence was reasonable, but she alleges no error and
concludes the district court did not abuse its discretion in
sentencing Heyward. In his pro se supplemental brief, Heyward
questions whether the district court erred in calculating his
criminal history category and his offense level.
We review Heyward’s sentence for abuse of discretion.
See Gall v. United States, 128 S. Ct. 586, 597 (2007). “The first
step in this review requires us to ‘ensure that the district court
committed no significant procedural error, such as . . . improperly
calculating . . . the Guidelines range.’” United
States v. Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128
S. Ct. at 597), cert. denied, 76 U.S.L.W. 3629 (2008). We then
consider the substantive reasonableness of the sentence imposed,
taking into account the totality of the circumstances. Gall, 128
S. Ct. at 597. We presume that a sentence within a properly
calculated guideline range is reasonable. United States v. Allen,
491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States,
127 S. Ct. 2456 (2007) (upholding our presumption).
We have reviewed the record and find Heyward’s sentence
is both procedurally and substantively reasonable, and the district
court did not abuse its discretion in imposing the sentence.
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First, the district court properly calculated Heyward’s guideline
range. The court correctly determined his base offense level was
twenty-four under U.S.S.G. § 2K2.1(a)(2), because he committed the
instant offense subsequent to sustaining at least two felony
convictions of a controlled substance offense, and correctly added
four levels under U.S.S.G. § 2K2.1(b)(6), because Heyward possessed
the firearm and ammunition in connection with another felony
offense, namely, involuntary manslaughter. Although the probation
officer did not recommend that Heyward receive an acceptance of
responsibility reduction under U.S.S.G. § 3E1.1, the district court
sustained his counsel’s objection and granted Heyward a three-point
reduction. Thus, his total offense level was twenty-five. With a
criminal history category VI, and a 120-month statutory maximum,
Heyward’s guideline range was 110 to 120 months in prison.
Heyward also challenges the calculation of his criminal
history category, contending that he should get the benefit of a
recent amendment to U.S.S.G. § 4A1.2(a)(2) regarding when multiple
prior sentences are counted separately or as a single sentence, and
that his criminal history category should be lower. We agree that
the 2007 edition of the guideline manual applies to Heyward’s case,
because it was in effect when he was sentenced and his presentence
report, which was revised on November 15, 2007, states that the
2007 edition was used in preparing the report. However, even in
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light of the amendment, we conclude that Heyward’s criminal history
category was correctly determined to be VI.
Specifically, Heyward challenges the points assessed for
his multiple prior sentences on April 1, 1998 and November 6, 2001.
However, the two offenses for which he was sentenced on April 1,
1998 were separated by an intervening arrest, and thus properly
counted separately. Even assuming that the two offenses for which
Heyward was sentenced on November 6, 2001 should be counted as a
single sentence, this would only reduce his criminal history score
by one point to a total of seventeen points. Because Heyward would
still be in criminal history category VI and his guideline range
the same, this would not constitute significant procedural error.
Finally, we conclude that the district court reasonably
determined that a sentence at the low end of Heyward’s advisory
guideline range was appropriate. The Government argued for a
sentence at the statutory maximum, because Heyward’s criminal
history was extensive and the instant offense resulted in the death
of a close relative, which could have been avoided. Heyward
requested a sentence of less than the statutory maximum so that he
would have a chance to come back to his family and start the
healing process with them. Although Heyward did not contest any of
his criminal history points in the district court, he also argued
that his drug crimes involved small quantities, that he was not a
violent man, and he had no prior convictions for gun crimes. A
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number of his family members and friends testified on his behalf.
The district court considered the guidelines and the statutory
factors. The court acknowledged Heyward’s remorse was genuine and
the situation was a tragedy. Although the court gave him a bit of
a break in deference to his family, the court determined a
guideline sentence was appropriate because of Heyward’s extensive
criminal history and the seriousness of the offense.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore deny Heyward’s pro se motion for transcripts
at government expense and 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 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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