UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAL DANIELS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00103-RJC-DCK-2)
Submitted: August 28, 2012 Decided: August 31, 2012
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermal Daniels was convicted of: Count 1, conspiracy
to possess with intent to distribute heroin and cocaine; Count
5, possession with intent to distribute heroin and aiding and
abetting; Count 6, possession with intent to distribute cocaine
and aiding and abetting; Count 7, possession of a firearm during
and in relation to a drug trafficking crime; Count 8, possession
of a firearm by a convicted felon; and Count 13, intimidating or
threatening a witness. Daniels received concurrent sentences of
life imprisonment for Count 1, 360 months for Counts 5 and 6,
and 120 months for Counts 8 and 13; his sixty-month sentence
for Count 7 was imposed to run consecutively to all other
counts.
We affirmed all of Daniels’ convictions on appeal
except for Count 1, finding error under United States v.
Collins, 415 F.3d 304, 314-15 (4th Cir. 2005). See United
States v. Daniels, 323 F. App’x 201, 204 (4th Cir. 2009). We
instructed on remand, regarding Count 1, that the Government
could elect to either apply the relevant default penalty
provision in 18 U.S.C.A. § 841(b)(1)(B) (West 1999 & Supp. 2012)
(providing for a sentence of ten years to life in prison) or
request that the conviction be reversed and commence a new
trial. Id. at 217.
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On remand, the Government pursued the first course and
Daniels was resentenced to 360 months of imprisonment based on
an advisory sentencing range of 292-365 months of imprisonment.
Daniels again appeals. His appellate counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal, but questioning
whether the district court correctly applied the Sentencing
Guidelines when it sentenced Daniels to 360 months of
imprisonment for Count 1 on remand. For the reasons that
follow, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th
Cir. 2009). In so doing, we first examine the sentence for
significant procedural error, including failing to calculate (or
improperly calculating) the advisory Sentencing Guidelines
range, treating the Guidelines as mandatory, failing to consider
the 18 U.S.C. § 3553(a) (2006) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence. Gall, 552 U.S. at 51. We then
consider the substantive reasonableness of the sentence, taking
into account the totality of the circumstances. United States
v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), cert.
denied, 131 S. Ct. 3078. If the sentence is within the
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Guidelines range, we presume on appeal that the sentence is
reasonable. 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 appellate presumption of reasonableness for within-
Guidelines sentence).
Here, Daniels was sentenced to a properly calculated
advisory Guidelines range. The district court listened to the
arguments of counsel and to Daniels himself, and expressly
considered the § 3553(a) factors. The court adequately
explained its decision to sentence Daniels within his advisory
sentencing range, and we find no reason not to apply the
appellate presumption of reasonableness on appeal. See Go, 517
F.3d at 218. Thus, this claim is without merit.
In accordance with Anders, we have reviewed the record
in this case, including the issues raised in Daniels’ pro se
supplemental brief, and have found no meritorious issues for
appeal. We therefore affirm Daniels’ sentence for Count 1. We
deny Daniels’ motions to withdraw or substitute counsel and his
motion for Order to Review/Inspect Motion of Discovery and grant
his motion to amend his pro se supplemental brief. This court
requires that counsel inform Daniels, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Daniels requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Daniels.
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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