UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4127

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEWIS MOSES BYRD,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Graham C. Mullen, Senior

District Judge. (3:03-cr-00067)

Submitted: October 20, 2006 Decided: December 6, 2006

Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

E. James Chandler, II, Charlotte, North Carolina, for Appellant.

Gretchen C. F. Shappert, United States Attorney, Kimlani Murray

Ford, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
1

The plea agreement contains a waiver of appellate rights.

However, the Government has not sought to enforce it.

2Byrd has filed a pro se supplemental brief. However, the

issues he asserts are also raised for the first time on appeal and

are thus likewise reviewed for plain error.

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PER CURIAM:

Lewis Moses Byrd pled guilty pursuant to a plea agreement

to possession with intent to distribute cocaine base, in violation

of 21 U.S.C. § 841(a)(1) (2000), and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1) (2000). The district court sentenced Byrd to a total

of 382 months’ imprisonment. Byrd appealed.1

Byrd’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there are no meritorious

issues for appeal but seeking review of Byrd’s sentence for

unreasonableness. The district court found Byrd qualified as a

career offender pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 4B1.1 (2003). Counsel contends the district court’s

decision to sentence Byrd according to this provision amounted to

a failure to treat the Sentencing Guidelines as advisory pursuant

to United States v. Booker, 543 U.S. 220 (2005), and resulted in an

excessive sentence. Because counsel raises this issue for the

first time on appeal, it is reviewed for plain error.2 See United

States v. Olano, 507 U.S. 725, 733-37 (1993).
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After Booker, we review a district court’s sentence “for

unreasonableness.” Booker, 543 U.S. at 261; United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). A sentencing court

is no longer bound by the range prescribed by the advisory

Sentencing Guidelines. United States v. Green, 436 F.3d 449,

455-56 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); Hughes,

401 F.3d at 546. In determining the sentence, however, courts are

still required to calculate and consider the Guidelines range, as

well as the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000

& Supp. 2006). “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 F.3d 424, 432 (4th Cir. 2006) (quotation

omitted), cert. denied, 126 S. Ct. 2054 (2006).

“[A] sentence imposed within the properly calculated

Guidelines range . . . is presumptively reasonable.” Green, 436

F.3d at 457 (internal quotation marks and citation omitted).

Byrd’s sentence was within the properly calculated Guidelines

range, and is thus presumptively reasonable. Upon review, we

conclude that Byrd has not overcome this presumption, and that his

sentence is reasonable.

In his pro se supplemental brief, Byrd claims he was not

fully apprised of the mandatory minimum of ten years’ imprisonment
3Byrd’s 2002 conviction for possession with intent to sell or

deliver cocaine is a permissible predicate offense for a career

offender finding, even though Byrd was sentenced to an eight to

ten-month suspended sentence and served only a thirty-day jail term

for the offense. The relevant question is whether any defendant

charged with the crime could receive a sentence of more than one

year, not whether Byrd in particular did or could have. That is,

the court must consider “the maximum aggravated sentence that could

be imposed for that crime upon a defendant with the worst possible

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under § 924(c) for discharging a firearm. The record belies this

claim. The plea agreement explicitly made Byrd aware of this

penalty, and Byrd indicated during the Fed. R. Crim. P. 11 hearing

that he understood and agreed with the terms of the plea agreement.

Upon review, we conclude Byrd knowingly and voluntarily entered his

guilty plea, with an understanding of its consequences. See United

States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004).

Byrd also claims the district court improperly counted

his 1991 second degree murder conviction as a predicate felony

committed by an adult for career offender status because he was

seventeen years old at the time of that conviction. A defendant is

a career offender if (1) he was at least eighteen years old when he

committed the instant offense; (2) the instant offense is a felony

that is either a crime of violence or a controlled substance

offense; and (3) he has at least two prior felony convictions for

either a crime of violence or a controlled substance offense. A

prior felony conviction must be “a prior adult federal or state

conviction for an offense punishable by death or imprisonment for

a term exceeding one year3 . . . .” USSG § 4A1.2, comment. (n.1).
criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th

Cir.), cert. denied, 126 S. Ct. 297 (2005). Byrd’s 2002 conviction

was a Class H felony, which carries a maximum of thirty months’

imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2003).

4The North Carolina Youthful Offender Act was repealed in

1995. See N.C. Gen. Stat. § 148-49.10 (2001).

5Additionally, Byrd’s contention that the district court

violated Booker when it deemed Byrd was a career offender after

finding the fact of his prior convictions is meritless. See

United States v. Cheek, 415 F.3d 349, 352-53 (4th Cir.) (stating

that the rule of Almendarez-Torres v. United States, 523 U.S. 224

(1998), was not overruled by Booker and remains the law), cert.

denied, 126 S. Ct. 640 (2005).

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A conviction sustained before age eighteen may qualify as a

predicate conviction “if it is classified as an adult conviction

under the laws of the jurisdiction in which the defendant was

convicted.” Id.

Byrd relies on United States v. Mason, 284 F.3d 555 (4th

Cir. 2002), which concludes that an adult conviction for which a

juvenile sentence was imposed may not be counted as a predicate

conviction under § 4B1.1, but such reliance on Mason is misplaced.

Mason involved a West Virginia sentencing scheme that permits a

defendant under eighteen who is convicted as an adult to be

sentenced as a juvenile, while the North Carolina Youthful Offender

Act had no similar provision.4 A youthful offender sentence was

one type of adult sentence. Because Mason is inapposite, Byrd has

not demonstrated the district court erred in deciding that his

North Carolina youthful offender sentence was an adult sentence.5
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Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Byrd’s convictions and sentence. We deny Byrd’s motion to compel

his counsel to surrender all documents relating to the appeal.

This court requires that counsel inform the client, in writing, of

his right to petition the Supreme Court of the 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 in 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