UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY LARON MCKNIGHT, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:11-cr-00057-RCC-1)
Submitted: August 3, 2012 Decided: August 28, 2012
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tim C. Carrico, CARRICO LAW OFFICES, Charleston, West Virginia,
for Appellant. Richard Gregory McVey, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy Laron McKnight appeals his eighty-four-month
sentence after he pled guilty pursuant to a plea agreement to
one count each of distribution of twenty-eight grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and
being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2006). McKnight’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for
appeal, but questioning whether the district court abused its
discretion when it determined that McKnight’s criminal history
category did not overstate his criminal history and the
likelihood he would commit future crimes. Counsel has also
filed a motion to be relieved as counsel for McKnight. McKnight
was informed of his right to file a pro se supplemental brief,
but has not done so. The Government has not filed a responsive
brief. * Finding no error, we affirm.
*
Because the Government elected not to file a responsive
brief or a motion to dismiss the appeal based on the appellate
waiver contained in McKnight’s plea agreement, this court has
conducted an Anders review. 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).
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In reviewing any sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” we
apply a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). We must first consider
whether the district court committed any procedural error and
then “[i]f, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). “Substantive reasonableness examines
the totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in 18 U.S.C. § 3553(a).”
United States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir.
2010).
A district court has discretion to depart downward
“[i]f reliable information indicates that the defendant’s
criminal history category substantially over-represents the
seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes[.]” U.S.
Sentencing Guidelines Manual § 4A1.3(b)(1) (2011). Because of
the discretion afforded the district court, however, “we lack
the authority to review a sentencing court’s denial of a
downward departure unless the court failed to understand its
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authority to do so.” United States v. Hackley, 662 F.3d 671,
686 (4th Cir. 2011) (brackets, quotation marks and citation
omitted), cert. denied, 132 S. Ct. 1936 (2012). McKnight does
not argue, and the record does not disclose, that the district
court failed to recognize its authority to depart downward.
Thus, we decline to disturb McKnight’s below-Guidelines
sentence.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm the district court’s judgment. We also deny counsel’s
motion to be relieved as counsel for McKnight and require that
counsel inform McKnight, in writing, of his right to petition
the Supreme Court of the United States for further review. If
McKnight requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may then move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
McKnight. 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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