UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JABLE ATHEL MAXWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Mary G. Lewis, District Judge. (3:15-cr-00474-MGL-1)
Submitted: September 28, 2018 Decided: October 11, 2018
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Aimee J. Zmroczek, A.J.Z. LAW FIRM, LLC, Columbia, South Carolina, for Appellant.
Jane Barrett Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jable Athel Maxwell appeals the 60-month sentence imposed following his guilty
plea, entered pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, to possession
with intent to distribute and distribution of a quantity of heroin, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012). On appeal, Maxwell’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds
for appeal but questioning the district court’s application of a two-level Sentencing
Guidelines enhancement for possession of a weapon and the reasonableness of Maxwell’s
sentence. 1 Although notified of his right to do so, Maxwell has not filed a pro se
supplemental brief, and the Government has elected not to respond to the Anders brief.
Finding no reversible error, we affirm.
We review a defendant’s sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under this standard, a sentence
is reviewed for both procedural and substantive reasonableness. 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, and sufficiently
explained the selected sentence. Id. at 49-51. If a sentence is free of “significant
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Maxwell also questions the validity of his waiver of appellate rights. Although
Maxwell executed a broad appellate waiver, the Government has not sought to enforce it,
and we do not enforce appeal waivers sua sponte. United States v. Jones, 667 F.3d 477,
486 (4th Cir. 2012). Accordingly, we need not decide whether Maxwell’s appeal waiver
was knowing and voluntary.
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procedural error,” we review it for substantive reasonableness, “tak[ing] into account the
totality of the circumstances.” Id. at 51. “Any sentence that is within or below a properly
calculated Guidelines range is presumptively reasonable.” United States v. Louthian, 756
F.3d 295, 306 (4th Cir. 2014). “Such a presumption can only be rebutted by showing that
the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
We review Maxwell’s challenge to the weapon enhancement for clear error.
United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010). Under U.S. Sentencing
Guidelines Manual § 2D1.1(b)(1) (2015), a two-level enhancement applies if the
defendant possessed a dangerous weapon, including a firearm. “[T]he enhancement . . .
‘should be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.’” United States v. Mondragon, 860 F.3d 227,
231 (4th Cir. 2017) (quoting USSG § 2D1.1 cmt. n.11(A) (emphasis omitted)). “[T]he
Government must prove by a preponderance of the evidence that the weapon was
possessed in connection with drug activity that was part of the same course of conduct or
common scheme as the offense of conviction.” Manigan, 592 F.3d at 628-29 (internal
quotation marks omitted); see Mondragon, 860 F.3d at 231. “[P]roof of constructive
possession of the dangerous weapon is sufficient, and the Government is entitled to rely
on circumstantial evidence to carry its burden.” Manigan, 592 F.3d at 629.
Here, the district court adopted the findings of the presentence report, which
indicated that law enforcement recovered a handgun from Maxwell’s residence, as well
as ammunition of the same caliber from a stash house where Maxwell stowed illicit
substances. Based on this record, we conclude that the district court did not clearly err in
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applying the two-level enhancement under USSG § 2D1.1(b)(1). In addition, we discern
no other procedural error, as the district court correctly calculated Maxwell’s Guidelines
range of 97 to 121 months, afforded the parties an opportunity to address the court,
considered the § 3553(a) factors, and thoroughly explained its reasons for imposing the
sentence stipulated in the Rule 11(c)(1)(C) plea agreement. Finally, nothing in the record
rebuts the presumption that Maxwell’s below-Guidelines-range sentence is substantively
reasonable.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
amended criminal judgment. This court requires that counsel inform Maxwell, in
writing, of the right to petition the Supreme Court of the United States for further review.
If Maxwell 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 Maxwell.
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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