UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBERT EUGENE PULLIAM,
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-00445-NCT-2)
Submitted: April 27, 2012 Decided: June 8, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Graham Tod Green, Assistant
United States Attorney, Randall Stuart Galyon, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Herbert Eugene Pulliam appeals his conviction and 156-
month sentence following his guilty plea to conspiracy to
distribute crack cocaine. On appeal, Pulliam’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal but
questioning whether Pulliam’s prior conviction in North Carolina
for possession with intent to manufacture a controlled substance
qualifies as a predicate felony offense for the enhanced
sentence and for purposes of the career offender Guideline.
Pulliam was advised of his right to file a pro se supplemental
brief but did not file one. Finding no error, we affirm.
Pulliam questions whether his sentence was
procedurally reasonable. In reviewing a sentence, this court
must first ensure that the district court did not commit any
“significant procedural error,” such as failing to properly
calculate the applicable Guidelines range, failing to consider
the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately
explain the sentence. Gall v. United States, 552 U.S. 38, 51
(2007).
Pulliam challenges the computation of his Guidelines
range. Because the state drug conviction at issue was
consolidated with another crime for sentencing purposes, Pulliam
asserts that a reviewing court is not able to determine with
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certitude whether his actual sentence for the state drug
conviction amounted to more than one year. Citing United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Pulliam
maintains that he might have received an actual custodial
sentence of one year or less for that offense and therefore the
conviction should not qualify as a predicate felony offense for
the career offender enhancement.
Pulliam’s argument rests on a misinterpretation
of Simmons. The rule announced in Simmons does not compel us to
look to the actual sentence imposed on a defendant. See id. at
243; see also United States v. Thompson, No. 11-5059, 2012 WL
1592991, at *2 (“Pursuant to Simmons, in evaluating whether a
defendant’s prior state conviction qualifies as a felony under
the ACCA, the actual sentence imposed is irrelevant.”).
Instead, we focus on the maximum sentence that the defendant
before the court could have received. Here, Pulliam does not
dispute that he was eligible for a sentence exceeding one year.
He accordingly fails to raise a successful challenge
under Simmons.
Upon review, we conclude that the district court
committed no procedural or substantive error in sentencing
Pulliam to 156-months’ imprisonment, a sentence below the
applicable Sentencing Guidelines range. See United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (providing standard of
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review); see also United States v. Jackson, 598 F.3d 340, 345
(7th Cir.) (“A below-guidelines sentence, like a within-
guidelines one, is presumed reasonable against a defendant’s
challenge that it is too high.”), cert. denied, 131 S. Ct. 435
(2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Pulliam, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Pulliam 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 Pulliam. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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