UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4976
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMORAL ANTONEE MCCORKLE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00276)
Submitted: April 23, 2008 Decided: September 5, 2008
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Randall Stuart Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jamoral Antonee McCorkle pled guilty to possession with
intent to distribute approximately twenty-four grams of crack
cocaine (Count 1), in violation of 21 U.S.C. § 841(a)(1) (2000),
and possession of a firearm after having been convicted of a felony
(Count 2), in violation of 18 U.S.C. § 922(g)(1) (2000). At the
sentencing hearing, the district court pronounced a sentence of 205
months on Count 1 and a 120-month sentence on Count 2, to run
concurrently with the sentence on Count 1. Counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
suggesting that McCorkle’s sentence is unreasonable.1 Counsel also
states, however, that in light of McCorkle’s knowing and voluntary
waiver of the right to appeal,2 there are no meritorious issues
before the court. McCorkle was informed of his right to file a pro
se supplemental brief, but he has not done so. We affirm
McCorkle’s convictions and the oral sentence imposed at the
1
Counsel also notes in a footnote that “[a]lthough precluded
at the time by Fourth Circuit precedent, the district court should
have been allowed to consider th[e] unwarranted [100:1 crack-to-
powder cocaine] disparity under 18 U.S.C.[A.] § 3553(a) [(West 2000
& Supp. 2008)].” (Appellant’s Br. at 11 n.2, citing Kimbrough v.
United States, 128 S. Ct. 558 (2007)). We find that Kimbrough is
of no assistance to McCorkle because his ultimate guideline range
was not determined based on drug quantity but on his status as a
career offender.
2
Because the Government has not asserted the waiver on appeal,
we do not enforce it. See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed in
case with appeal waiver, Government’s failure to respond “allow[s]
this court to perform the required Anders review”).
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sentencing hearing but remand the case to the district court with
instructions to correct the written judgment to conform to the oral
sentence.
McCorkle’s counsel suggests that the sentence is
unreasonable because it is greater than necessary to achieve the
sentencing goals of promoting respect for the law and providing
just punishment for the offenses because McCorkle was convicted in
state court and sentenced to six months on the same conduct that
formed the basis of the federal charges against him. In sentencing
a defendant after United States v. Booker, 543 U.S. 220 (2005), a
district court must engage in a multi-step process. First, the
court must correctly calculate the appropriate advisory guidelines
range. Gall v. United States, 128 S. Ct. 586, 596 (2007) (citing
Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). The court
then must consider that range in conjunction with the § 3553(a)
factors. Id. The court “may not presume that the Guidelines range
is reasonable” but, rather, must “make an individualized assessment
based on the facts presented” in determining an appropriate
sentence. Id. at 596-97. The district court also “must adequately
explain the chosen sentence to allow for meaningful appellate
review . . . .” Id. at 597.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Id.; see also United
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States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The appellate
court:
must first ensure that the district court committed no
significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
adequately explain the chosen sentence — including an
explanation for any deviation from the Guidelines range.
Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard. When
conducting this review, the court will, of course, take
into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.
Gall, 128 S. Ct. at 597.
McCorkle does not challenge the procedural aspects of his
sentence. Turning to the substantive reasonableness of McCorkle’s
sentence, counsel questions whether the 205-month sentence serves
the purposes of sentencing. The district court considered
McCorkle’s argument that a sentence at or below the bottom of the
advisory guideline range was sufficient to serve the purposes of
sentencing because McCorkle had been convicted in state court on
the same conduct that formed the basis of the federal charges
against him. The court rejected his argument on the ground that
McCorkle essentially received no jail time on the state sentence
because it ran concurrently with another state sentence. Thus, the
district court selected a sentence of 205 months, which was near
the middle of the guideline range and took into account McCorkle’s
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college attendance. We therefore conclude that, under the totality
of the circumstances, the district court did not abuse its
discretion in determining that the § 3553(a) factors supported the
205-month sentence imposed on Count 1.
We have reviewed the record in accordance with Anders
and affirm McCorkle’s convictions and the oral sentence imposed at
the sentencing hearing. We note, however, that the written
judgment reflects concurrent sentences of 205 months on both Counts
1 and 2. But the oral sentence properly reflected the 120-month
statutory maximum for Count 2. 18 U.S.C. § 924(a)(2). When the
written judgment conflicts with the oral sentence, the oral
sentence controls. See United States v. Osborne, 345 F.3d 281, 283
n.1 (4th Cir. 2003); United States v. Morse, 344 F.2d 27, 29 n.1
(4th Cir. 1965). Thus, we remand the case to the district court
with instructions to correct the written judgment to conform to the
sentence announced at the sentencing hearing.
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
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED AND REMANDED
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