UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4661
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBBY LEE MCFALLS, a/k/a Robbie Lee McFalls,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:10-cr-01178-JMC-1)
Submitted: January 22, 2013 Decided: January 24, 2013
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. William Corley Lucius, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robby Lee McFalls pled guilty without a plea agreement
to two counts of mailing threatening communications, in
violation of 18 U.S.C.A. § 876(c) (West Supp. 2012); and one
count of influencing, impeding, or retaliating against a federal
official by threatening or injuring a family member, in
violation of 18 U.S.C.A. § 115 (West 2000 & Supp. 2012), and was
sentenced to sixty months in prison. Counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no grounds for appeal, but explaining that
McFalls believes the district court erred when it imposed his
sixty-month sentence. The Government has declined to file a
responsive brief and McFalls has not filed a pro se supplemental
brief, despite receiving notice of his right to do so. Finding
no error, we affirm.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness, using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires the court
to ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 160-61
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
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[18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). If, and only
if, this court finds the sentence procedurally reasonable can
the court consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). We have reviewed the district court record and
discern no procedural or substantive sentencing error in the
district court’s decision to impose the sixty-month below-
Guidelines sentence.
We have examined the entire record in accordance with
our obligations under Anders and have found no meritorious
issues for appeal. Accordingly, we affirm the district court’s
judgment. This court requires that counsel inform McFalls, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McFalls requests that a
petition be filed, but counsel believes that such a petition
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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 McFalls. 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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