UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4944
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY BYRON PRIDGEN, a/k/a Big Ant,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:01-cr-00627-CWH-6; 4:06-cv-00166-CWH)
Submitted: March 10, 2010 Decided: May 6, 2010
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Marvin
Jennings Caughman, Assistant United States Attorney, Columbia,
South Carolina, Rose Mary Sheppard Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Byron Pridgen appeals the district court’s
amended judgment reducing his prison sentence from 292 months to
240 months after ordering that he be resentenced in his 28
U.S.C. § 2255 (2006) proceeding. Pridgen’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issue of whether the district court
complied with 18 U.S.C. § 3553(a) (2006) when it resentenced
Pridgen to 240 months. Pridgen has filed a pro se supplemental
brief raising the issue of whether the district court erred or
abused its discretion when it refused to entertain his motion
under § 2255 and instead granted him a resentencing under United
States v. Booker, 543 U.S. 220 (2005). We dismiss this appeal
in part, and we affirm the district court’s judgment.
We review Pridgen’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires us to
ensure that the district court committed no significant
procedural error. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Gall, 552 U.S. at 51.
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At Pridgen’s original sentencing, the district court
sentenced him at the low end of his guideline range to 292
months in prison. At resentencing, the district court reduced
his sentence to the statutory mandatory minimum term of 240
months. In explaining its sentence, the district court reviewed
the § 3553(a) factors and noted that the court considered the
guideline range as advisory and looked to the § 3553(a) factors
in imposing the sentence. The court further explained that
Booker did not remove the statutory mandatory minimum, and that
the court had no discretion to sentence him below that minimum.
Pridgen’s attorney contends that if the district court
had given greater deference to the § 3553(a) factors, Pridgen
would have received a lower sentence. We find this argument
without merit. The district court had no discretion to sentence
Pridgen below the statutory mandatory minimum, see United States
v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), and his sentence
to the statutory mandatory minimum is per se reasonable. See
United States v. Farrior, 535 F.3d 210, 224 (4th Cir.), cert.
denied, 129 S. Ct. 743 (2008).
In his pro se supplemental brief, Pridgen questions
whether the district court erred or abused its discretion when
it refused to entertain his § 2255 motion and instead granted
him a Booker resentencing. The district court ordered the
resentencing based on Pridgen’s allegation and the Government’s
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concession that his appellate attorney may have been ineffective
in not filing a timely petition for certiorari, and he was
prejudiced as a result. The district court dismissed Pridgen’s
remaining claims without prejudice to him raising them in
another § 2255 motion after his sentence was final following
direct review on his resentencing.
To the extent that Pridgen challenges the propriety of
the district court’s § 2255 relief on his ineffective assistance
claim pertaining to the untimely petition for certiorari, we
find no abuse of discretion by the district court. See United
States v. Hadden, 475 F.3d 652, 666 (4th Cir. 2007). To the
extent that he seeks to appeal the district court’s decision to
dismiss his remaining claims without prejudice, we have reviewed
the record and conclude that he has failed to make a substantial
showing of the denial of a constitutional right pursuant to 28
U.S.C. § 2253(c) (2006). Accordingly, we deny a certificate of
appealability and dismiss this part of Pridgen’s appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss this appeal in part 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
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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.
DISMISSED IN PART;
AFFIRMED IN PART
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