United States of America v. Larry B. Stywall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY B. STYWALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00114-LHT-1)
Submitted: March 11, 2010 Decided: April 12, 2010
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles R. Brewer, Asheville, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Larry B. Stywall appeals his conviction and sentence
imposed after he pled guilty without the benefit of a plea
agreement to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006). Stywall’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there were no meritorious arguments for
appeal. Stywall was notified of the opportunity to file a pro
se supplemental brief, but did not do so. The Government chose
not to file a brief.
We have reviewed the record and find no meritorious
issues. A review of the guilty plea hearing shows that the
magistrate judge complied with Rule 11 of the Federal Rules of
Criminal Procedure and that Stywall’s guilty plea was knowing
and voluntary. Counsel’s objection concerning double-counting
in determining the base offense level was without merit. See
United States v. Wheeler, 330 F.3d 407, 413-14 (6th Cir. 2003);
United States v. Alessandroni, 982 F.2d 419, 420-21 (10th Cir.
1992). We have reviewed Stywall’s within-Guidelines sentence
for abuse of discretion and have found it to be reasonable.
Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing a
sentence, the appellate court must first ensure that the
district court committed no procedural error, such as failing to
calculate or improperly calculating the Guidelines range,

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treating the Guidelines as mandatory, failing to consider the
§ 3553(a) 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 49-50. If there are no
procedural errors, the appellate court then considers the
substantive reasonableness of the sentence. Id. A substantive
reasonableness review entails taking into account the totality
of the circumstances. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007) (quotations and citation omitted). Further,
this court may presume a sentence within the Guidelines range to
be reasonable. Id. We have found no error with the court’s
findings regarding Stywall’s total offense level or criminal
history category. We further note the court was aware the
Guidelines were advisory and that it considered the sentencing
factors under 18 U.S.C. § 3553(a) (2006). We further find the
court’s sentence at the low end of the advisory Guidelines range
was consistent with defense counsel’s argument at the close of
sentencing.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the

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United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. 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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