UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDY CECIL PHILLIPS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00011-MR-1)
Submitted: February 10, 2011 Decided: February 16, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Assistant
Federal Defender, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Phillips pleaded guilty pursuant to a written
plea agreement to one count of possession with intent to
distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B) (2006) and one count of sale of
two firearms to a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court imposed the statutory
mandatory minimum sentence of 120 months in prison. Counsel for
Phillips filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), certifying that there are no meritorious
grounds for appeal, but questioning whether the district court
fashioned a reasonable sentence. Phillips did not file a pro se
supplemental brief. The Government elected not to file a brief.
Finding no reversible error, we affirm.
A review of the record reveals no error in sentencing. *
When determining a sentence, the district court must calculate
the appropriate advisory Sentencing Guidelines range and
consider it in conjunction with the factors set forth in 18
*
Phillips’ plea agreement included a waiver barring an
appeal from the calculation of his sentence. However, the
Government has not filed a motion to dismiss asserting the
waiver, and we do not sua sponte enforce appellate waivers. See
generally United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th
Cir. 2000)). Accordingly, we will decide the appeal on the
merits.
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U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Lynn, 592 F.3d 572 (4th Cir.
2010). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the [g]uidelines range,” is for abuse of discretion.
Gall, 552 U.S. at 41. Sentences within the applicable
guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Phillips, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors. Because of the statutory mandatory
minimum sentence, Phillips’ Guidelines range became 120 to 125
months. Phillips’ 120-month sentence, which is the statutory
minimum sentence the district court was required to impose, may
be presumed reasonable by this court. Pauley, 511 F.3d at 473.
We conclude that the district court did not abuse its discretion
in imposing the chosen sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Phillips, in writing, of the right
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to petition the Supreme Court of the United States for further
review. If Phillips 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 Phillips.
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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