UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID M. HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:01-cr-00115-BEL-3)
Submitted: April 15, 2010 Decided: May 25, 2010
Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Michael Joseph Leotta, Christopher
John Romano, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted David M. Harris of five offenses: (1)
conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine; (2) possession with intent to
distribute five hundred grams or more of cocaine; (3) possession
of a firearm in furtherance of a drug trafficking crime; (4)
possession of a firearm by a convicted felon; and (5) possession
of ammunition by a convicted felon. Sentenced in accordance
with the then-mandatory sentencing guidelines, Harris received a
total of 270 months’ imprisonment. On direct appeal, this court
affirmed Harris’ convictions, but vacated his sentence and
remanded for resentencing, in accordance with United States v.
Booker, 543 U.S. 220 (2005). See United States v. Harris, 215
F. App’x 262 (4th Cir. 2007) (Nos. 03-4297/4298). On remand,
the district court sentenced Harris to 211 months’ imprisonment.
Harris now appeals.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view,
there are no meritorious issues for appeal, but raising the
issues of whether certain prior convictions were properly
considered in Harris’ criminal history and whether Harris’
sentence was reasonable. In addition to restating the claims by
counsel in the Anders brief, Harris claims in pro se
supplemental briefs that the district court abused its
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discretion in denying his motion for another continuance and
failed to explain its reasons for the chosen sentence. He
further moves for remand to the district court on various
grounds pertaining to his convictions. The Government has
declined to file a response. Finding no reversible error, we
affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). In so doing, we first examine the sentence for
“significant procedural error,” including: “failing to calculate
(or improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. We “then consider the substantive
reasonableness of the sentence imposed.” Id. “Substantive
reasonableness review entails taking into account the ‘totality
of the circumstances, including the extent of any variance from
the [g]uidelines range.’” United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007) (quoting Gall, 522 U.S. at 51). If the
sentence is within the guidelines range, we apply a presumption
of reasonableness. United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008) (“[A] sentence located within a correctly
calculated guidelines range is presumptively reasonable.”),
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cert. denied, 129 S. Ct. 1312 (2009); see Rita v. United States,
551 U.S. 338, 347 (2007) (upholding presumption of
reasonableness for within-guidelines sentence).
Harris first contends that the district court erred in
calculating his criminal history category under the sentencing
guidelines. In this regard, he objects specifically to the
addition of points in his criminal history for: (1) a 1984
arrest and resulting convictions for Sexual Offense and Battery;
and (2) a 1996 conviction for possession of a firearm in a
vehicle. * In considering the district court’s application of
the guidelines, we review factual findings for clear error and
legal conclusions de novo. United States v. Allen, 446 F.3d
522, 527 (4th Cir. 2006).
Because Harris was convicted of Sexual Offense as an
adult, he was sentenced on the Sexual Offense conviction to more
than thirteen months, his sentence was imposed less than fifteen
years prior to the commencement of the subject offense and his
incarceration extended into the fifteen-year period prior to the
*
Although counsel challenges the prior conviction for
handgun possession on the ground that the Government failed to
prove that prior conviction belonged to Harris, a closer review
of the pleadings and transcripts of the proceedings makes clear
that counsel objected on this basis to the CDS possession
conviction, and not the handgun possession conviction. We find
no basis in the record to apply the argument to the handgun
possession conviction.
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commencement of the subject offense, we find three points were
properly added to Harris’ criminal history category based on
this prior conviction. See U.S. Sentencing Guidelines Manual
§ 4A1.1, comment. (n.1) (“Three points are added for each prior
sentence of imprisonment exceeding one year and one
month . . . . A sentence imposed more than fifteen years prior
to the defendant’s commencement of the instant offense is not
counted unless the defendant’s incarceration extended into this
fifteen year period . . . . A sentence imposed for an offense
committed prior to the defendant’s eighteenth birthday is
counted under this item only if it resulted from an adult
conviction.”); see also USSG § 4A1.2(d)(1) (“If the defendant
was convicted as an adult and received a sentence of
imprisonment exceeding one year and one month, add 3 points
under § 4A1.1(a) for each such sentence.”).
Harris next argues, as he did below, that his
conviction for CDS possession was also improperly assessed one
point in the calculation of his criminal history. He contends
the Government failed to prove he was the person convicted of
that offense. The district court found by a preponderance of
the evidence that Harris was the individual who received the
conviction for possession of CDS in 1996. We find no error in
this factual finding. See generally United States v. Love, 134
F.3d 595, 606 (4th Cir. 1998) (quoting United States v. Terry,
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916 F.2d 157, 162 (4th Cir. 1990)) (“A mere objection to the
finding in the presentence report is not sufficient . . . .
Without an affirmative showing the information is inaccurate,
the court is ‘free to adopt the findings of the [presentence
report] without more specific inquiry or explanation.’”).
Last, Harris argues that his sentence was unreasonable
under the guidelines and the 18 U.S.C. § 3553(a) factors. The
district court here followed the necessary procedural steps in
sentencing Harris, appropriately treating the sentencing
guidelines as advisory, properly calculating and considering the
applicable guidelines range, performing an individualized
assessment of the § 3553(a) factors to the facts of the case,
and stating in open court the reasons for the 211-month
sentence. See United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
In determining that a 211-month sentence was
appropriate, the district court considered the § 3553(a)
factors, explicitly noting Harris’ offense was “serious;” he was
a part of an “organized drug ring;” “[he] recruited others;” and
he “has a serious criminal record.” The district court stressed
that a 211-month sentence protects the public, deters Harris,
and is sufficient in light of the fact that Harris has taken
college courses, has a work record, and has a son he cares
about. Harris’ within-Guidelines sentence is presumptively
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reasonable on appeal, and Harris has not rebutted that
presumption. See United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006) (stating presumption may be rebutted by
showing sentence is unreasonable when measured against the
§ 3553(a) factors). We therefore find no abuse of discretion in
imposing the chosen sentence.
In accordance with Anders, we have reviewed the entire
record in this case and Harris’ pro se supplemental briefs and
have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. We further deny Harris’
pending motions to remand, to substitute counsel, and “To
Dismiss for Extreme Appellate Delay.” This court requires that
counsel inform Harris, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Harris 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
Harris. 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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