UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SCOTTY TYRONE SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:11-cr-00128-WO-1)
Submitted: July 26, 2012 Decided: August 1, 2012
Before MOTZ, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Scotty Tyrone Simmons pled guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1), § 924(a)(2) (2006). On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting there are no meritorious grounds for appeal, but
raising the following issue: whether the district court erred in
sentencing Simmons to 104 months of imprisonment.
We review Simmons’ sentence for reasonableness using
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires us
to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include improperly
calculating the advisory Sentencing Guidelines range, failing to
consider the § 3553(a) sentencing factors, sentencing using
clearly erroneous facts, or failing to adequately explain the
sentence. Gall, 552 U.S. at 51. Only if we find a sentence
procedurally reasonable may we consider its substantive
reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009). Here, we discern no basis to conclude that Simmons’
within-Guidelines sentence was either procedurally or
substantively unreasonable. See United States v. Powell, 650
F.3d 388, 395 (4th Cir.) (noting this court presumes sentence
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within applicable Guidelines range to be reasonable), cert.
denied, 132 S. Ct. 350 (2011). Thus, this claim is without
merit.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Simmons’ conviction and sentence. This
court requires that counsel inform Simmons, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Simmons 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 Simmons. 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
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