UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4834

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HERBERT EUGENE PULLIAM,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:10-cr-00445-NCT-2)

Submitted: April 27, 2012 Decided: June 8, 2012

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 

North Carolina, for Appellant. Graham Tod Green, Assistant 

United States Attorney, Randall Stuart Galyon, OFFICE OF THE 

UNITED STATES ATTORNEY, Greensboro, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Herbert Eugene Pulliam appeals his conviction and 156-

month sentence following his guilty plea to conspiracy to 

distribute crack cocaine. On appeal, Pulliam’s 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 Pulliam’s prior conviction in North Carolina 

for possession with intent to manufacture a controlled substance 

qualifies as a predicate felony offense for the enhanced 

sentence and for purposes of the career offender Guideline. 

Pulliam was advised of his right to file a pro se supplemental 

brief but did not file one. Finding no error, we affirm.

Pulliam questions whether his sentence was 

procedurally reasonable. In reviewing a sentence, this court 

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). 

Pulliam challenges the computation of his Guidelines 

range. Because the state drug conviction at issue was 

consolidated with another crime for sentencing purposes, Pulliam 

asserts that a reviewing court is not able to determine with 
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certitude whether his actual sentence for the state drug 

conviction amounted to more than one year. Citing United States 

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Pulliam 

maintains that he might have received an actual custodial 

sentence of one year or less for that offense and therefore the 

conviction should not qualify as a predicate felony offense for 

the career offender enhancement.

Pulliam’s argument rests on a misinterpretation 

of Simmons. The rule announced in Simmons does not compel us to 

look to the actual sentence imposed on a defendant. See id. at 

243; see also United States v. Thompson, No. 11-5059, 2012 WL 

1592991, at *2 (“Pursuant to Simmons, in evaluating whether a 

defendant’s prior state conviction qualifies as a felony under 

the ACCA, the actual sentence imposed is irrelevant.”). 

Instead, we focus on the maximum sentence that the defendant 

before the court could have received. Here, Pulliam does not 

dispute that he was eligible for a sentence exceeding one year. 

He accordingly fails to raise a successful challenge 

under Simmons.

Upon review, we conclude that the district court 

committed no procedural or substantive error in sentencing 

Pulliam to 156-months’ imprisonment, a sentence below the 

applicable Sentencing Guidelines range. See United States v. 

Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (providing standard of 
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review); see also United States v. Jackson, 598 F.3d 340, 345 

(7th Cir.) (“A below-guidelines sentence, like a withinguidelines one, is presumed reasonable against a defendant’s 

challenge that it is too high.”), cert. denied, 131 S. Ct. 435 

(2010).

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 Pulliam, in writing, of his right 

to petition the Supreme Court of the United States for further 

review. If Pulliam 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 Pulliam. We dispense with oral argument because 

the facts and legal conclusions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED