USCA4 Appeal: 22-4052 Doc: 27 Filed: 12/22/2022 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASHLEY BRYON FISHER, a/k/a Ponchie,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:20-cr-00453-JFA-10)
Submitted: December 20, 2022 Decided: December 22, 2022
Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. Andrew Robert de Holl, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ashley Bryon Fisher pled guilty, pursuant to a written plea agreement, to conspiracy
to possess with intent to distribute and to distribute 280 grams or more of cocaine base and
500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. The
district court sentenced Fisher, below the advisory Sentencing Guidelines range, to 84
months’ imprisonment. On appeal, counsel for Fisher has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal,
but questioning whether the district court reversibly erred in calculating Fisher’s criminal
history. Although notified of his right to file a pro se supplemental brief, Fisher has not
filed one. The Government elected to not file a brief. We affirm.
We review Fisher’s sentence for reasonableness under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007). The first step in
this review requires us to “ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51. Generally, when reviewing a district court’s application of the
Guidelines, we review the district court’s legal conclusions de novo and its factual
conclusions for clear error. United States v. Allen, 909 F.3d 671, 677 (4th Cir. 2018).
Under the Guidelines, prior sentences exceeding one year and one month generally
are assigned three criminal history points. U.S. Sentencing Guidelines Manual § 4A1.1(a)
(2021). However, any sentence imposed more than 15 years before the commencement of
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the instant offense should not be counted unless the defendant’s incarceration extended
into the 15-year period. USSG §§ 4A1.1 cmt. n.1, 4A1.2(e)(1) & cmt. n.8.
Fisher was assessed three criminal history points each for two prior five-year
sentences imposed in June 2001. * He contends that the district court erred in scoring
criminal history points for these sentences, arguing that he was released from custody more
than 15 years before he committed the instant conspiracy offense. However, Fisher was
released from incarceration on the prior sentences on June 1, 2004. By Fisher’s own
admission, he became involved in the instant drug trafficking conspiracy no later than
January 2019. Therefore, his prior terms of imprisonment extended into the 15 years
preceding the commencement of his instant offense. We conclude that the district court
properly calculated the criminal history points for these sentences and our review of the
record convinces us that Fisher’s sentence is procedurally reasonable.
We next review the substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances.” Gall, 552 U.S. at 51. Any sentence within or
below a properly calculated Guidelines range is presumptively substantively reasonable,
and that presumption may be rebutted only by a showing that the sentence is unreasonable
when measured against the § 3553(a) factors. United States v. Louthian, 756 F.3d 295, 306
(4th Cir. 2014). Fisher has failed to rebut the presumption of reasonableness accorded his
below-Guidelines sentence.
*
The prior sentences were imposed on the same day, but are counted separately
because Fisher was arrested for the first offense before he committed the second offense.
USSG § 4A1.2(a)(2).
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In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Fisher, in writing, of the right to petition the
Supreme Court of the United States for further review. If Fisher 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 Fisher. 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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