United States v. Brian Sellars

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4681

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN KEITH SELLARS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00243-TDS-1)

Submitted: April 25, 2013 Decided: April 30, 2013

Before WILKINSON, KING, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Lisa Blue Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Brian Keith Sellars appeals the 135-month sentence

imposed following this court’s remand for resentencing, pursuant

to United States v. Simmons, 649 F.3d 237 (4th Cir. 2010) (en

banc). On appeal, Sellars’ counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious grounds for appeal but questioning whether

the district court’s sentence on remand was reasonable. Sellars

has filed a pro se supplemental brief in which he alleges

ineffective assistance of counsel, that the district court made

numerous errors when determining his relevant conduct, and that

the court failed to comply with applicable forfeiture

procedures. Finding no error, we affirm.

The sole issue raised in the Anders brief is whether

Sellars’ sentence on remand was reasonable. In reviewing a

sentence, we must first ensure that the district court did not

commit any “significant procedural error,” such as failing to

properly calculate the applicable Guidelines range, failing to

consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to

adequately explain the sentence. Gall v. United States, 552

U.S. 38, 51 (2007). Once we have determined that there is no

procedural error, we must consider the substantive

reasonableness of the sentence, “tak[ing] into account the

totality of the circumstances.” Id. If the sentence imposed is

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within the appropriate Guidelines range, we consider it

presumptively reasonable. United States v. Abu Ali, 528 F.3d

210, 261 (4th Cir. 2008). The presumption may be rebutted by a

showing “that the sentence is unreasonable when measured against

the § 3553(a) factors.” United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006) (internal quotation marks

omitted). Upon review, we conclude that the district court

committed no procedural or substantive error in imposing the

135-month sentence on remand. United States v. Lynn, 592 F.3d

572, 577 (4th Cir. 2010) (providing standard of review).

We have considered Sellars’ pro se arguments and, in

accordance with Anders, we have reviewed the record in this

case. Our review has revealed no meritorious issues for appeal.

We therefore deny Sellars’ motion to appoint counsel and affirm

the district court’s second amended judgment. This court

requires that counsel inform Sellars, in writing, of his right

to petition the Supreme Court of the United States for further

review. If Sellars requests that a petition be filed, but

counsel believes that such a petition would be frivolous,

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Sellars. We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

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materials before this court and argument would not aid the

decisional process.

AFFIRMED

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