UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4428
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMY JAY STRAYHORN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00368-CCE-1)
Submitted: January 29, 2015 Decided: February 4, 2015
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for
Appellant. Andrew Charles Cochran, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Jay Strayhorn, Jr., appeals the seventy-two
month sentence imposed by the district court after he was
convicted of knowingly carrying and using a firearm during and
in relation to a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(i) (2012). Strayhorn was originally
convicted of two counts of obstructing commerce by robbery, in
violation of 18 U.S.C. §§ 2, 1951(a) (2012) (Counts One and
Three), one count of knowingly carrying and using, by
brandishing, a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii)
(2012) (Count Two), and one count of carrying and using firearms
during and in relation to a crime of violence, in violation of
18 U.S.C. §§ 2, 924(c)(1)(A)(i) (2012) (Count Four). We
previously vacated the sentence for Count Two because the
question of whether Strayhorn brandished the firearm had not
been submitted to the jury as required by Alleyne v. United
States, 133 S. Ct. 2151 (2013), decided subsequent to
Strayhorn’s initial sentence. We affirmed Strayhorn’s other
convictions and sentences, and remanded for resentencing.
United States v. Strayhorn, 743 F.3d 917 (4th Cir. 2014).
On appeal, Strayhorn’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that he has found no meritorious grounds for appeal but
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questioning whether Strayhorn’s sentence is substantively
reasonable. Strayhorn has filed a pro se supplemental brief
challenging the calculation of his criminal history. We affirm
the judgment of the district court.
Initially, we note that Strayhorn’s pro se claim, a
challenge to his criminal history category, was not raised in
the prior appeal and was not within the scope of our remand. It
is therefore foreclosed by the mandate rule. See United States
v. Pileggi, 703 F.3d 675, 679-80 (4th Cir. 2013) (“[T]he mandate
rule forecloses litigation of issues forgone on appeal or
otherwise waived . . . .” (internal quotation marks, emphasis
and ellipsis omitted)).
As to counsel’s claim, we review a district court’s
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). When a district court
imposes a sentence that falls outside of the applicable
Guidelines range, we consider “whether the sentencing court
acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence
from the sentencing range.” United States v. Hernandez–
Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). In conducting
this review, we give due deference to the sentencing court’s
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decision because it has “flexibility in fashioning a sentence
outside of the Guidelines range.” United States v. Diosdado-
Star, 630 F.3d 359, 364 (4th Cir. 2011). Having reviewed the
record, we find that the seventy-two month sentence on Count
Two, including the twelve-month upward variance, is
substantively reasonable for the reasons stated on the record by
the district court.
In accordance with Anders, we have reviewed the entire
record for any meritorious grounds for appeal and have found
none. Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform Strayhorn, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Strayhorn requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy
thereof was served on Strayhorn. 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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