UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES ALAN O’CONNOR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00060-NCT-l)
Submitted: October 16, 2008 Decided: November 24, 2008
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Michael A. DeFranco, Angela Hewlett Miller, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Alan O’Connor pled guilty pursuant to a written
plea agreement to one count of possessing a firearm after being
convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (2000). The district court sentenced O’Connor to twelve
months in prison, and O’Connor timely appealed. O’Connor’s
attorney filed a brief in accordance with Anders v. California, 386
U.S. 739 (1967), certifying that there are no meritorious grounds
for appeal, but questioning whether O’Connor’s guilty plea
proceeding was properly conducted and whether the district court
abused its discretion by not imposing a lower sentence. The
Government did not file a reply brief. O’Connor submitted a pro se
supplemental brief contending that: (1) the evidence was
insufficient to demonstrate that he knowingly and illegally
possessed the firearm; (2) he did not have a firearm on his person
in connection with two shooting incidents at his bar, despite ABC
investigative reports that stated otherwise; (3) he was falsely
accused of involvement with child pornography; and (4) due to his
deteriorating health he should not be placed in a facility other
than Butner; however, the Bureau of Prisons keeps trying to place
him in FCI Petersburg. Finding no reversible error, we affirm.
Counsel’s brief first evaluates whether the district
court properly conducted the hearing at which O’Connor entered his
guilty plea. For the reasons summarized by counsel, we are in
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agreement that the court meticulously conducted the Rule 11
proceeding. Based upon O’Connor’s responses to the court’s
inquiries and the evidence presented, the court properly concluded
that O’Connor fully understand the nature of the charges against
him and the applicable punishment range, that the plea was
knowingly and voluntarily entered, and that there was an adequate
factual basis for the plea. Accordingly, we find no deficiency in
the guilty plea proceeding.
Likewise, we find no basis to question the sentence
imposed by the district court. After United States v. Booker, 543
U.S. 220 (2005), a district court is no longer bound by the range
prescribed by the sentencing guidelines. However, in imposing a
sentence post-Booker, courts still must calculate the applicable
guidelines range after making the appropriate findings of fact, and
consider the range in conjunction with other relevant factors under
the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008).
Gall v. United States, 128 S. Ct. 586, 596 (2007). The court must
give both parties an opportunity to argue for whatever sentence
they deem appropriate,” and the district judge “may not presume
that the Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-
97. This court will affirm a post-Booker sentence if it “is within
the statutorily prescribed range and is reasonable.” Id. at 433
(internal quotation marks and citation omitted). On appellate
review, this court may presume that a sentence within the properly
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calculated advisory Guidelines range is reasonable. Rita v. United
States, 127 S. Ct. 2456, 2462, 2465 (2007).
Here, the district court sentenced O’Connor after
considering and examining the sentencing guidelines and the
§ 3553(a) factors, as instructed by Booker, and applied the
guidelines as advisory. The court heard from both O’Connor and the
Government about calculation of his criminal history score and
O’Connor was permitted to argue for a lower sentence or probation.
Counsel argued that the firearm actually belonged to O’Connor’s
wife and O’Connor had never used the weapon nor intended to, and
that O’Connor had serious health concerns; thus, probation was an
appropriate alternative. The court sentenced O’Connor to twelve
months, the bottom of the advisory guidelines range, and well below
the statutory maximum of ten years. The court explained that it
would not depart from the guidelines range, in light of the fact
that O’Connor likely had possession of the same firearm as far back
as 2002, he knew the firearm was at the bar and in his house, and
he was aware that he was not legally permitted to possess it.
Because neither O’Connor nor the record reveals any information to
rebut the presumption that his sentence was reasonable, we find no
fault with the length of the sentence imposed by the district
court.
We likewise reject the issues raised by O’Connor in his
pro se submissions. O’Connor first argues that the evidence was
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insufficient to support his conviction. A valid guilty plea,
however, forecloses the right to challenge antecedent,
non-jurisdictional defects. See Tollett v. Henderson, 411 U.S.
258, 267 (1973); Hall v. McKenzie, 575 F.2d 481 (4th Cir. 1978).
Accordingly, we conclude O’Connor’s insufficiency of evidence claim
is waived by his validly entered guilty plea.
Next, O’Connor argues that he did not possess a gun
during two incidents at his bar, as reported by local law
enforcement. The district court found these instances demonstrated
by a preponderance of the evidence that O’Connor possessed the gun
at least since 2002 and negated his argument that the gun was never
under his control but solely used by his wife. Accordingly, the
court rejected O’Connor’s mitigation arguments in favor of
probation, and found a sentence of imprisonment appropriate.
After Booker, a sentencing court continues to make
factual findings concerning sentencing factors by a preponderance
of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005), cert. denied, 127 S. Ct. 121 (2006). Long-standing
authority has permitted a sentencing court to consider any evidence
at sentencing that “has sufficient indicia of reliability,” see
USSG § 6A1.3(a), including “conduct underlying [an] acquitted
charge, so long as that conduct has been proved by a preponderance
of the evidence.” United States v. Watts, 519 U.S. 148, 156-57
(1997) (per curiam); United States v. Montgomery, 262 F.3d 233, 249
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(4th Cir. 2001). Based upon the evidence presented at sentencing,
the district court did not err in rejecting O’Connor’s mitigation
arguments and imposing a sentence of imprisonment.
O’Connor also contends that he was falsely accused of
being involved in child pornography. O’Connor was never arrested
or charged as officers found no evidence of child pornography when
O’Connor’s residence was searched; thus, this claim does not bear
on his conviction or this appeal.
Finally, O’Connor argues that the Bureau of Prisons
(“BOP”) keeps attempting to place him in FCI Petersburg despite the
court’s recommendation that he be placed in FCI Butner due to
health concerns. While this claim relates to the execution of
O’Connor’s sentence, which is not a proper subject for direct
appeal, we note that the record demonstrates that the court has
granted O’Connor’s several requests to delay his self-reporting
time until the BOP can accommodate him in Butner. Moreover, from
O’Connor’s most recent filing and his return address, it is
apparent that O’Connor is now housed at Butner.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm O’Connor’s conviction and sentence. We also deny
O’Connor’s motion to substitute counsel. This court requires that
counsel inform O’Connor, in writing, of the right to petition the
Supreme Court of the United States for further review. If O’Connor
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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 O’Connor.
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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