UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4274
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHMAR MONTE GALLOWAY, a/k/a Nutso,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (7:11-cr-00106-FL-1)
Submitted: October 10, 2012 Decided: October 17, 2012
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johmar Monte Galloway appeals his sentence after
pleading guilty to conspiracy to possess with intent to
distribute and to distribute heroin in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006), possession with intent to distribute
heroin in violation of 21 U.S.C. § 841(a)(1) (2006), and
possession of a firearm after having been convicted of a crime
punishable by imprisonment for a term exceeding one year in
violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). Galloway’s
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting, in counsel’s opinion, that there are
no meritorious grounds for appeal, but raising the issue of
whether the district court erred by denying Galloway federal
benefits for five years pursuant to 21 U.S.C. § 862 (2006).
Galloway was notified of his right to file a pro se supplemental
brief but has not done so. We affirm.
We review a sentence under a deferential 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, such as improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the sentence is
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procedurally reasonable, we then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51. We
presume that a sentence within or below a properly calculated
Guidelines range is substantively reasonable. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012).
The district court determined that Galloway would be
ineligible for federal benefits for five years under 21 U.S.C.
§ 862(b)(1)(B) (2006). On appeal, he argues that the penalties
under the statute are inapplicable to him pursuant to 21 U.S.C.
§ 862(e) (2006) because he pled guilty. However, that provision
applies to “Government witnesses” and includes “any individual
who cooperates or testifies with the Government in the
prosecution of a Federal or State offense or who is in a
Government witness protection program.” Id. We have reviewed
the record and conclude that the district court did not err or
abuse its discretion in denying Galloway these benefits.
In accordance with Anders, we have reviewed the entire
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 his or her client, in
writing, of his or her right to petition the Supreme Court of
the United States for further review. If the client requests
that a petition be filed, but counsel believes that such a
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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 the client.
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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