UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4787
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONALD EDWARD BYRD,
Defendant – Appellant,
DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,
Parties-in-Interest.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-19)
Submitted: April 22, 2009 Decided: May 8, 2009
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Beth Drake, Mark C. Moore, Jane
Barrett Taylor, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Donald Edward Byrd was convicted by a jury of
conspiracy to distribute five kilograms or more of cocaine and
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006), and possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was
sentenced to life in prison. Byrd appealed, challenging his
convictions and sentence. We affirmed Byrd’s convictions and
rejected claims relating to his sentence, but because he was
sentenced under the then-mandatory Sentencing Guidelines,
vacated and remanded for resentencing consistent with United
States v. Booker, 543 U.S. 220 (2005). See United States v.
Davis, 270 F. App’x 236 (4th Cir. March 17, 2008) (unpublished).
On remand, the district court imposed a 300-month
variant sentence and Byrd timely appealed. Counsel for Byrd has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), explaining that he found no meritorious grounds for
appeal but suggesting that Byrd’s variant sentence is
unreasonable. Counsel also moved for permission to withdraw
from further representation of Byrd. Byrd has not filed a pro
se supplemental brief but has moved for appointment of new
counsel. The Government has declined to file a responding
brief. Finding no error, we affirm the district court’s
judgment and deny the pending motions.
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In accordance with Anders, we have reviewed the
record in this case and have found no meritorious issues for
review. After Booker, a sentence is reviewed for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 128 S. Ct. 586, 597 (2007). The first
step in this review requires the court to ensure that the
district court committed no significant procedural error.
United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).
Assuming the district court committed no significant procedural
error, this court must next consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Id. at 161-62.
While the court may presume that a sentence within the
Guidelines range is reasonable, it may not presume that a
sentence outside the Guidelines range is unreasonable. Gall,
128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d 210,
261 (4th Cir. 2008) (“[A] sentence that deviates from the
Guidelines is reviewed under the same deferential abuse-of-
discretion standard as a sentence imposed within the applicable
guidelines range.”), cert. denied, 129 S. Ct. 1312 (2009).
Rather, in reviewing a sentence outside the Guidelines range, we
“consider the extent of the deviation, but must give due
deference to the district court's decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Gall,
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128 S. Ct. at 597. Even if this court would have imposed a
different sentence, this fact alone will not justify vacatur of
the district court’s sentence. Id.
We find the district court’s 300-month variant
sentence to be reasonable. On remand, the district court
entertained counsel’s argument regarding the weight that should
be afforded the § 3553(a) factors, allowed Byrd an opportunity
to allocute, and thoroughly considered the § 3553(a) factors
before imposing Byrd’s sentence. We conclude that the district
court adequately explained its rationale for imposing the
variant sentence and that the reasons relied upon by the
district court are valid considerations under § 3553(a) and
justify the sentence imposed. See United States v. Pauley,
511 F.3d 468, 473-76 (4th Cir. 2007).
Having reviewed the record in this case and finding no
meritorious issues for review, we deny Byrd’s motion for
appointment of new counsel and affirm the district court’s
judgment. At this juncture, we also deny counsel’s motion to
withdraw from further representation of Byrd. Rather, this
court requires that counsel inform Byrd in writing of his right
to petition the Supreme Court of the United States for further
review. If Byrd requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move this court for leave to withdraw from representation.
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Counsel's motion must state that a copy thereof was served on
Byrd. 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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