UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ARAZIL CLEVELAND,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:14-cr-00784-HMH-1)
Submitted: February 23, 2016 Decided: February 25, 2016
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Elizabeth Jean
Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Arazil Cleveland pled guilty to bank robbery, in
violation of 18 U.S.C. § 2113 (2012). He received a within-
Guidelines sentence of 57 months’ imprisonment. On appeal,
Cleveland’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious grounds for appeal but questioning whether the
district court erred in calculating Cleveland’s criminal history
points. Cleveland has filed a pro se brief raising the same
issue. The Government declined to file a response.
We review Cleveland’s sentence for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, selected a sentence based on facts that were not
clearly erroneous, and sufficiently explained the selected
sentence. Id. at 49-51.
If the sentence is free of “significant procedural error,”
we review it for substantive reasonableness, “tak[ing] into
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account the totality of the circumstances.” Id. at 51. Any
sentence within or below a properly calculated Guidelines range
is presumptively substantively reasonable. United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th
Cir. 2012). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Louthian, 756 F.3d at 306.
Because Cleveland did not object below to the calculation
of his criminal history points, our review is limited to plain
error. United States v. Hamilton, 701 F.3d 404, 410 (4th Cir.
2012). To establish plain error, a defendant must show that
“(1) there is an error, (2) the error is plain, and (3) the
error affects substantial rights.” Henderson v. United States,
133 S. Ct. 1121, 1126 (2013) (internal quotation marks and
alteration omitted). We conclude that the district court did
not err in assessing the disputed criminal history points. See
U.S. Sentencing Guidelines Manual § 4A1.1(e) (2014) (directing
that one point be added for each prior sentence resulting from a
conviction of a crime of violence that did not receive points
under USSG § 4A1.1(a) because such sentence was treated as a
single sentence).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
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therefore affirm the amended judgment. This court requires that
counsel inform Cleveland, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Cleveland 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 Cleveland. 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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