United States of America v. California, 386 U.S. 738 1967

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAM COMMANDER, JR.,
Defendant - Appellant.
No. 07-4513
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAM COMMANDER, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:02-cr-00947; 3:06-cr-00747)
Submitted: October 24, 2007 Decided: November 1, 2007
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Marshall Prince, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
On December 6, 2002, Sam Commander, Jr. pled guilty to
conspiring to obtain stolen vehicles in violation of 18 U.S.C.
§ 371 (2000). Commander was sentenced to five years of probation.
Commander was subsequently charged with conspiracy to commit bank
fraud, in violation of 18 U.S.C.A. §§ 1344 (2000) and 1349 (West
2000 and Supp. 2007) for his participation in a check kiting
scheme. Pursuant to a plea agreement, Commander pled guilty to the
sole count in the indictment on November 20, 2006. The probation
office then issued a petition for a warrant or summons for
Commander, alleging that his conviction for conspiracy to commit
bank fraud violated the terms of his probation.
On April 19, 2007, the district court held a sentencing
hearing for Commander’s new conviction and a probation revocation
hearing. Prior to the hearing, the probation office prepared a
presentence investigation report and a probation violation report.
In Commander’s presentence report, the probation officer calculated
an advisory guidelines range of twenty-seven to thirty-three
months. In the probation violation report, a different probation
officer determined that, pursuant to USSG § 7B1.1, conspiracy to
commit bank fraud constituted a Grade B violation. The officer
then recommended a sentence of twelve to eighteen months’
imprisonment based on USSG § 7B1.4(a).

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*Commander was informed of his right to file a pro se
supplemental brief. He has elected not to do so.
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At Commander’s hearing, the district court, after hearing
no objection from either counsel regarding the officer’s
calculations, adopted the presentence report and sentenced
Commander to twenty-seven months’ imprisonment for his conviction
of conspiring to commit bank fraud. The district court then
revoked Commander’s probation and sentenced him to a consecutive
term of twelve months’ imprisonment, in conformity with the
probation officer’s calculation in the probation violation report.
Commander timely noted his appeal to both his conviction for
conspiring to commit bank fraud and his revocation of probation.
Commander’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and questions whether: (1) the
district court complied with Fed. R. Crim. P. 11 in accepting
Commander’s guilty plea; (2) the district court abused its
discretion in revoking Commander’s probation; and (3) the sentence
imposed by the district court was reasonable. * We affirm the
judgment of the district court.
Under Fed. R. Crim. P. 11(b), a district court must
address the defendant in open court and inform him of the
following: the nature of the charge; any mandatory minimum
sentence and the maximum possible sentence; the applicability of
the sentencing guidelines; the defendant’s right to an attorney;

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his right to plead not guilty; his right to be tried by a jury with
the assistance of counsel; his right to confront and cross-examine
witnesses; and his right against self-incrimination. The court
must also advise the defendant that a guilty plea waives any
further trial and that his answers at the proceeding may be used
against him in a prosecution for perjury. Under Rule 11(b)(2), the
court must address the defendant to determine that his plea is
voluntary. The court must require disclosure of any plea agreement
under Rule 11(c)(2), and determine whether a factual basis exists
for the plea under Rule 11(b)(3). Our review of the record reveals
that the district court conducted a thorough inquiry pursuant to
Rule 11.
Commander next questions whether the district court
abused its discretion in revoking his supervised release. A
decision to revoke a defendant’s supervised release is reviewed for
abuse of discretion. United States v. Davis, 53 F.3d 638, 642-43
(4th Cir. 1995). A district court need only find a violation by a
preponderance of the evidence to revoke a defendant’s supervised
release. 18 U.S.C.A. § 3583(e)(3) (West 2000 and Supp. 2007).
Here, Commander knowingly and intelligently pled guilty to
conspiring to commit bank fraud; Commander committed his new
offense while on supervised release. Accordingly, the district
court did not abuse its discretion in revoking Commander’s
supervised release.

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Finally, Commander questions whether his sentence is
reasonable. After United States v. Booker, 543 U.S. 220 (2005), a
sentencing court must engage in a multi-step process at sentencing.
After calculating the correct advisory guidelines range, the
sentencing court must consider the guidelines range, any relevant
factors set forth in the guidelines, and the factors in 18 U.S.C.A.
§ 3553(a) (West 2000 and Supp. 2007); then the court may impose
sentence. United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). On appeal, this court reviews a sentence to determine
whether it is reasonable. United States v. Moreland, 437 F.3d 424,
433 (4th Cir. 2006). A post-Booker sentence may be unreasonable
for procedural or substantive reasons. However, a sentence that
falls within a properly calculated advisory guidelines range is
presumed to be reasonable. Rita v. United States, 127 S. Ct. 2456,
2462 (2007).
On the basis of the record presented to this court, we
cannot conclude that Commander’s sentence of twenty-seven months,
at the low end of his guidelines as calculated by the district
court, was unreasonable. The district court specifically
considered the advisory nature of the guidelines, the factors in
§ 3553(a), Commander’s cooperation in the bank fraud case, and
Commander’s declining health. The court also considered defense
counsel’s argument that the two sentences should run concurrently;

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however, the court determined that consecutive sentences at the low
end of Commander’s guideline ranges was the appropriate outcome.
In accordance with Anders, we have reviewed the 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 Commander, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Commander 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
Commander.
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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