UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4265
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYREE LAMAR SLADE, a/k/a Ovious Mcfly,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:08-cr-00024-jpj-pms-5)
Submitted: March 4, 2010 Decided: March 25, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Gordon Hunter, III, O’KEEFFE & SPIES, Lynchburg, Virginia,
for Appellant. Zachary T. Lee, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyree Lamar Slade pled guilty to one count of
conspiracy to possess and distribute fifty grams or more of
cocaine base and five hundred grams or more of cocaine, in
violation of 21 U.S.C. § 846 (2006). The district court
sentenced Slade to 300 months in prison. On appeal, Slade’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that he believed there were no meritorious
issues for appeal. However, at Slade’s request, counsel raised
two issues in the brief: (1) whether Slade’s sentence was
greater than necessary to comply with the purposes set forth in
18 U.S.C. § 3553(a) (2006), and (2) whether the district court
erred “in deviating from the guideline computation and/or
criminal history category, including but not limited to the plea
agreement” in this case. Slade has not filed a supplemental pro
se brief, nor has the Government filed a response to the Anders
brief. * Finding no error, we affirm.
*
Slade consented to waive all of his rights to appeal his
sentence and “any and all issues in this matter,” and agreed
that he would not file a notice of appeal. However, because the
Government has not filed a Motion to Dismiss or otherwise
asserted this waiver, this court may undertake a review pursuant
to Anders v. California, 386 U.S. 738 (1967). See United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If an Anders
brief is filed, the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review.”).
2
When a sentence is challenged on appeal, this court
reviews the sentence for both procedural and substantive
reasonableness using an abuse of discretion standard. See
Gall v. United States, 552 U.S. 38, 51 (2007). Procedural
errors include “failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) 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.” Id.
Here, Slade argues that the district court erred by
determining that his base offense level was thirty-eight, as
calculated in the presentence report (“PSR”), and not thirty-
seven as determined in the plea agreement. Slade is correct
that his plea agreement specifically noted that the career
offender Guidelines section, which would have put Slade’s base
offense level at thirty-seven, was applicable to Slade’s
conduct. However, it also stated expressly that “other
guideline sections may be applicable” to Slade’s case, and that
both he and the Government were “free to argue whether these
sections should or should not apply; to the extent the arguments
are not inconsistent with the stipulations, recommendations and
terms set forth in this plea agreement.” Additionally, the
agreement contained a provision that recognized that the
3
district court was “not bound by any recommendation or
stipulation and may sentence [Slade] up to the statutory
maximum.” Slade’s counsel never argued that U.S. Sentencing
Guidelines Manual § 2D1.1(c)(1) (2008) was incorrectly applied
to Slade based on the relevant facts, but rather asked the
sentencing court to “give credit” to the base offense level
noted in the plea agreement because the resulting sentence would
still be subject to a twenty-year statutory minimum. Because
the PSR determined that Slade was “criminally involved” with
more than 4.5 kilograms of cocaine base, the application of
§ 2D1.1(c)(1) to determine Slade’s base offense level was not in
error. The court also allowed the parties to present arguments
as to what they believed was an appropriate sentence, Slade was
given the opportunity to testify, and the court considered the
§ 3553(a) factors and documented an explanation for imposing the
final sentence. Thus, the district court did not commit
procedural error in sentencing Slade.
Slade also challenges the substantive reasonableness
of his sentence, questioning whether the sentence was greater
than necessary to comply with the purposes set forth in
18 U.S.C. § 3553(a). However, the sentence was within the
properly calculated Guidelines range, and we presume on appeal
that the sentence is substantively reasonable. See United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Moreover,
4
as noted, the sentencing court considered the factors in
§ 3553(a) and explained that the sentence was intended to serve
as a deterrent, to provide punishment for the offense, and to
promote respect for the law by having Slade take responsibility
for his actions. As a result, Slade’s sentence is not
substantively unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Slade’s conviction and dismiss that
part of the appeal relating to his sentencing. This court
requires that counsel inform Slade, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Slade 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 Slade. 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
5