UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY LEROY MCMAHAN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:13-cr-00116-TMC-1)
Submitted: June 18, 2014 Decided: September 25, 2014
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Leroy McMahan, Jr., pled guilty pursuant to a
plea agreement to one count each of producing counterfeit
obligations, in violation of 18 U.S.C. § 471 (2012), and of
uttering counterfeit obligations, in violation of 18 U.S.C.
§ 472 (2012), and was sentenced to seventy-two months in prison.
Counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that he has reviewed the record in this
case and found no meritorious issues for appeal. Counsel
nonetheless indicates that McMahan wishes to challenge his
upward departure sentence.
McMahan has filed a pro se supplemental brief, in
which he asserts that the district court erred when it: (1)
imposed an upward departure sentence because the district court
did not (a) provide a written statement articulating the reasons
for its departure or relate its reasons to the Guidelines, or
(b) properly calculate the extent of the departure; and (2)
enhanced his offense level two levels for his possession of a
dangerous weapon. The Government has declined to file a
responsive brief. Concluding that the district court did not
err, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
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38, 51 (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, 160-61
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless the court can conclude “that the error was harmless.”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). If,
and only if, this court finds the sentence procedurally
reasonable can the court consider the substantive reasonableness
of the sentence imposed. United States v. Carter, 564 F.3d 325,
328 (4th Cir. 2009).
We discern no procedural or substantive sentencing
error by the district court. Most notably, a review of
McMahan’s sentencing hearing establishes that the district court
correctly calculated McMahan’s Guidelines range at thirty-seven-
to-forty-six months in prison, including properly increasing
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McMahan’s offense level two levels, pursuant to USSG
§ 2B5.1(b)(4) (2012), because he was in possession of a sawed-
off shotgun at the time of his arrest.
The district court afforded counsel an adequate
opportunity to present argument regarding an appropriate
sentence under the § 3553(a) factors, gave McMahan an
opportunity to allocute, and ultimately sentenced McMahan to
seventy-two months in prison, which was twenty-six months above
the top of McMahan’s recommended Guidelines range. The district
court imposed an upward departure sentence based on the
inadequacy of McMahan’s criminal history category, in accordance
with U.S. Sentencing Guidelines Manual § 4A1.3(a) (2012). We
discern no error in the district court’s method of calculating
the extent of the departure, and find that the district court
adequately articulated its reasons for the departure. Thus, we
hold that the district court’s explanation for McMahan’s
sentence allows for sufficient appellate review. See Carter,
564 F.3d at 328 (“[T]he district court must state in open court
the particular reasons supporting its chosen sentence” and “set
forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority”) (internal
quotation marks omitted).
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We have examined the entire record in accordance with
our obligations under Anders and have found no meritorious
issues for appeal. Accordingly, we affirm the district court’s
judgment. This Court requires that counsel inform McMahan, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McMahan 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 McMahan. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this Court and
argument would not aid the decisional process.
AFFIRMED
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