UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4375

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESSIE YARBOROUGH,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. G. Ross Anderson, Jr., District

Judge. (8:05-cr-00809-GRA-2)

Submitted: November 20, 2006 Decided: December 18, 2006

Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South

Carolina, for Appellant. W. Walter Wilkins, OFFICE OF THE UNITED

STATES ATTORNEY, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
*

U.S. Sentencing Guidelines Manual (2004) (USSG).

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PER CURIAM:

Jessie Yarborough pleaded guilty, pursuant to a plea

agreement, to one count of conspiracy to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21

U.S.C.A. §§ 846, 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2006)

(Count Two); and one count of using and carrying a firearm during

and in relation to a drug trafficking crime, in violation of 18

U.S.C.A. § 924(c) (West Supp. 2006) (Count Four). The plea

agreement included a stipulation that the “quantity of cocaine

involved is 1 kilogram of cocaine with a base offense level of 26

for purposes of calculating the Defendant’s sentence pursuant to

the United States Sentencing Commission Guidelines.”

In determining the sentencing range under the Sentencing

Guidelines* for Count Two, the probation officer recommended a base

offense level of twenty-six pursuant to USSG § 2D1.1(c)(7), based

on the plea agreement stipulation. After a two-level reduction for

acceptance of responsibility, Yarborough’s total offense level for

Count Two was twenty-four. Yarborough’s prior criminal activity

resulted in a total of eleven criminal history points, placing him

in criminal history category V. The resulting sentencing range for

Count Two was ninety-two to 115 months. Count Four carried a

mandatory minimum of five years of imprisonment, consecutive to the

sentence on Count Two. Yarborough did not object to the
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presentence report (PSR). At sentencing the district court adopted

the factual findings and Guideline calculations in the PSR. The

court noted its consideration of the advisory Guidelines range and

the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and

sentenced Yarborough to ninety-two months of imprisonment on Count

Two and a consecutive sixty months of imprisonment on Count Four,

for a total of 152 months of imprisonment, four years of supervised

release, and a $200 special assessment. Yarborough timely

appealed.

On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he states there are no

meritorious issues for appeal, but questions whether the district

court erred in imposing a sentence of 152 months. Yarborough filed

a pro se supplemental brief asserting two allegations of error.

The Government declined to file a brief.

Counsel suggests that the district court erred in

imposing a sentence of 152 months of imprisonment. We review a

district court’s sentence for reasonableness. United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). “Consistent with the

remedial scheme set forth in Booker, a district court shall first

calculate (after making the appropriate findings of fact) the range

prescribed by the guidelines.” Id. at 546. Counsel does not

assert that the district court erred in determining the applicable
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Guideline range, and Yarborough’s offense level was determined

based on the stipulation in the plea agreement. 

Next, the district court must consider the Guideline

range in conjunction with other relevant factors under the

Guidelines and § 3553(a), and impose a sentence. “A sentence

within the proper advisory Guidelines range is presumptively

reasonable.” United States v. Johnson, 445 F.3d 339, 341-42 (4th

Cir. 2006). If a court imposes a sentence outside the Guideline

range, the court must state its reasons for doing so. Hughes, 401

F.3d at 546. The sentence must be “within the statutorily

prescribed range and . . . reasonable.” Id. at 546-47 (citations

omitted). Yarborough’s guilty plea to a drug conspiracy involving

500 or more grams of cocaine exposed him to a statutory sentence of

at least five and not more than forty years, 21 U.S.C.A.

§ 841(b)(1)(B); and his plea to using and carrying a firearm during

and in relation to a drug trafficking crime carried a statutory

minimum consecutive sentence of five years. 18 U.S.C.A. § 924(c).

In this case the district court calculated the Guideline

range and specifically stated that it considered the advisory

Guidelines pursuant to § 3553 before imposing sentence. “The

district court need not discuss each factor set forth in § 3553(a)

‘in checklist fashion’; ‘it is enough to calculate the range

accurately and explain why (if the sentence lies outside it) this

defendant deserves more or less.’” United States v. Moreland, 437
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F.3d 424, 432 (4th Cir.)(quoting United States v. Dean, 414 F.3d

725, 729 (7th Cir. 2005)), cert. denied, 126 S. Ct. 2054 (2006).

Yarborough’s sentence was within the properly calculated

Guideline range and did not exceed the statutory maximum. Our

review leads us to conclude that Yarborough’s “sentence was

selected pursuant to a reasoned process in accordance with law, in

which the court did not give excessive weight to any relevant

factor, and which effected a fair and just result in light of the

relevant facts and law.” United States v. Green, 436 F.3d 449, 457

(4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We have considered the arguments raised in Yarborough’s

pro se supplemental brief and find them to be without merit. We

therefore affirm Yarborough’s conviction and sentence. This court

requires that counsel inform Yarborough, in writing, of the right

to petition the Supreme Court of the United States for further

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

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process.

AFFIRMED