UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4229
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY THOMAS HAIZLIP, a/k/a Hogg,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00195-NCT-1)
Submitted: May 31, 2012 Decided: June 5, 2012
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina,
for Appellant. Graham Tod Green, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Thomas Haizlip pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
cocaine base, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(B) (West 2000 & Supp. 2011), and was
sentenced to fifty-three months in prison. Haizlip’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that he has reviewed the record and has
determined “after a thorough examination of the case and
applicable case law that [Haizlip] has no meritorious grounds
for appeal.” Counsel nonetheless explains that Haizlip wishes
to raise as an issue for this court’s review, whether the
district court considered the Fair Sentencing Act, Pub. L. No.
111-220, 124 Stat. 2372 (“FSA”), when it imposed Haizlip’s
sentence. Haizlip has not filed a pro se supplemental brief,
despite receiving notice of his right to do so, and the
Government has declined to file a responsive brief. 1 Finding no
error, we affirm.
1
Although Haizlip’s plea agreement contained an appellate
waiver, the Government elected not to file a responsive brief or
a motion to dismiss the appeal based on the appellate waiver
contained in Haizlip’s plea agreement. Accordingly, we have
conducted an Anders review in accordance with circuit precedent.
See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007) (recognizing that the Government may file a responsive
brief raising the appellate waiver issue or do nothing and allow
this Court to perform the Anders review).
2
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.
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). 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).
Although Haizlip suggests that the district court
erred in imposing his sentence because he asserts that the
district court failed to sentence him under the FSA, this
allegation is belied by the record. In fact, prior to imposing
Haizlip’s sentence, the district court heard argument from
counsel regarding the FSA’s applicability to Haizlip’s sentence,
and ultimately determined that the statute did apply, requiring
the alteration of Haizlip’s Guidelines range from sixty to
sixty-three months to fifty-one to sixty-three months. We
presume on appeal that Haizlip’s sentence, which was near the
bottom of his properly calculated Guidelines range, is
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reasonable. 2 United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
(permitting presumption of reasonableness for within-Guidelines
sentence).
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 Haizlip, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Haizlip 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 Haizlip. 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
2
By this disposition, we intimate no view as to whether
Haizlip would be entitled to resentencing based on the recent
Guidelines Amendments. However, this decision is rendered
without prejudice to Haizlip’s right to pursue relief, pursuant
to 18 U.S.C. § 3582(c)(2) (2006), in the sentencing court.
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