United States v. Clifton Barnes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4109

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CLIFTON BARNES,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)

Submitted: November 30, 2012 Decided: February 12, 2013

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, 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Unpublished opinions are not binding precedent in this circuit.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:

Clifton Barnes appeals from the district court’s

judgment after re-sentencing upon remand from this court. This

court reversed Barnes’s felon in possession of a firearm

conviction and vacated his sentence for possession with intent

to distribute cocaine base and aiding and abetting the same, in

violation of 21 U.S.C. § 841(b)(1)(C) (2006). The court’s

decision was based on United States v. Simmons, 649 F.3d 237

(4th Cir. 2011). In accordance with Anders v. California, 386

U.S. 738 (1967), Barnes’s attorney has filed a brief certifying

that there are no meritorious issues, but questioning whether

the 121-month sentence on remand was properly calculated.

Barnes filed a pro se supplemental brief also challenging his

sentence. We affirm.

First, we review Barnes’s sentence for reasonableness,

applying a “deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 52 (2007). We begin by reviewing

the sentence for significant procedural error, including

improper calculation of the Guidelines range, failure to

consider sentencing factors under 18 U.S.C. § 3553(a) (2006),

sentencing based on clearly erroneous facts, or failure to

adequately explain the sentence imposed. Id. at 51. Only if we

find a sentence procedurally reasonable can we consider

substantive reasonableness. United States v. Carter, 564 F.3d

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325, 328 (4th Cir. 2009). Here, Barnes’s within-Guidelines

sentence is presumed reasonable, United States v. Susi, 674 F.3d

278, 289 (4th Cir. 2012), and we find no procedural or

substantive error in its imposition.

We have also considered Barnes’s sentencing issues

raised in his pro se supplemental brief. He contends first that

the district court judge constructively amended the indictment

by finding a drug quantity at sentencing that would have placed

him in the penalty provision of 21 U.S.C. § 841(b)(1)(B) (2006),

had that quantity been charged in the indictment. Barnes was

convicted under § 841(b)(1)(C), with that section’s minimum and

maximum sentences applicable because the Government did not

charge a quantity in the superseding indictment. At the

re-sentencing, the district court patiently answered Barnes’s

questions about sentencing under § 841(b)(1)(C) and explained

that the statutory penalties are different from the Guidelines

determination regarding drug amount. Barnes was sentenced based

on the drug quantity found at sentencing, and the sentence is

below the statutory maximum sentence for a § 841(b)(1)(C)

offense. Therefore, there was no error.

Barnes also argues that, because the superseding

indictment did not specify drug quantity, he should only be

sentenced based on powder cocaine because he was not aware that

the other substances were crack cocaine. He states that

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although he admitted to the crack cocaine offense, it was only

because everyone involved in the case told him it was crack. We

conclude that the district court did not err in calculating the

drug types and quantity attributable to Barnes. The record

supports the district court’s determination.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Barnes’s new sentence. This court requires

that counsel inform Barnes, in writing, of the right to petition

the Supreme Court of the United States for further review. If

Barnes 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

Barnes.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED

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