UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TODD LAMAR MOSS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Spartanburg. Henry M. Herlong, Jr., District

Judge. (CR-05-526-HMH)

Submitted: July 31, 2006 Decided: August 31, 2006

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Regan Alexandra Pendleton,

Assistant United States Attorney, Greenville, South Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Todd Lamar Moss appeals his conviction and 151-month

sentence following a guilty plea to conspiracy to possess with

intent to distribute 100 grams or more of heroin, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(B) (2000). Moss’ attorney on appeal

has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that in his opinion there are no meritorious issues

for appeal, but raising as a potential issue whether the sentence

imposed by the district court was unreasonable. Moss has filed a

pro se supplemental brief. Finding no reversible error, we affirm.

After the Supreme Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), a sentencing court is no longer bound

by the range prescribed by the sentencing guidelines. See United

States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting

after Booker, sentencing courts should determine the sentencing

range under the guidelines, consider the other factors under 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and impose a

reasonable sentence within the statutory maximum). However, in

determining a sentence post-Booker, sentencing courts are still

required to calculate and consider the guideline range prescribed

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

Id. We will affirm a post-Booker sentence if it is both reasonable

and within the statutorily prescribed range. Hughes, 401 F.3d at

546-47. We have further stated that, “while we believe that the
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appropriate circumstances for imposing a sentence outside the

guideline range will depend on the facts of individual cases, we

have no reason to doubt that most sentences will continue to fall

within the applicable guideline range.” United States v. White,

405 F.3d 208, 219 (4th Cir.), cert. denied, 126 S. Ct. 668 (2005).

Indeed, “a sentence imposed ‘within the properly calculated

Guidelines range . . . is presumptively reasonable.’” United

States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.

Ct. 2309 (2006).

In reviewing the record under Anders, we have found one

point of concern. In the presentence report, the probation officer

states that Moss was convicted of conspiracy to possess with intent

to distribute less than 100 grams of heroin. However, Moss clearly

pled guilty to conspiracy to possess with intent to distribute 100

grams or more of heroin. Because Moss was ultimately sentenced as

a career offender, the error in determining the offense level based

on drug amount seems to be of no consequence. See USSG § 4B1.1(b)

(directing that “if the offense level for a career offender . . .

is greater than the offense level otherwise applicable, the offense

level from the table in this subsection shall apply”). But the

probation officer, in attributing less than 100 grams of heroin to

Moss under the career offender guideline, recommended, and the

court applied, an offense level of thirty-two (for an offense

statutory maximum of twenty years) rather than thirty-four (for an
1

Based on an offense level of thirty-one and a criminal

history category of VI, Moss’ guideline range would have been 188

to 235 months of imprisonment. 

2We note that, in light of the error in determining Moss’

proper guidelines range, Moss’ claim that his plea was not knowing

and involuntary based on the amount of drugs attributed to him

merits some discussion. At the hearing on his motion to withdraw

his guilty plea, Moss argued, inter alia, that he was not

responsible for 100 grams of heroin. The court explained that,

although he was directly responsible for only one-tenth of a gram

of heroin, because he was charged with conspiracy he was being held

responsible for a greater amount. Most importantly, the court

concluded that, because Moss was being sentenced as a career

offender, whether he was held responsible for one-tenth of a gram

or 100 grams of heroin made no difference in his guidelines range.

In light of the error in the presentence report previously

discussed, the district court’s statement was incorrect. In fact,

the amount of drugs for which Moss was held responsible determined

the applicable offense level under the career offender guideline.

However, at the hearing on the motion to withdraw, Moss agreed to

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offense statutory maximum of twenty-five years or more). See 21

U.S.C. § 841(b)(1)(B)(I) (2000) (stating statutory penalty for drug

offense involving 100 grams or more of heroin is not less than five

years and not more than forty years). Moss therefore should have

been subject to a higher sentence.1 In light of the Government’s

failure to appeal or to respond to the Anders brief, we find that

the error should inure to Moss’ benefit. Because the district

court appropriately treated the guidelines as advisory, considered

and examined the factors set forth in § 3553(a), and sentenced Moss

within the statutory maximum, we find that Moss’ sentence of 151

months of imprisonment is reasonable.

We find that the issues raised in Moss’ pro se

supplemental brief are without merit.2 In accordance with Anders,
being responsible for one-tenth of a gram of heroin. Because his

sentence conforms to his admission based on this amount, and not

the 100 grams of heroin that he disputed, we find no error in the

district court’s denial of his motion to withdraw his guilty plea

in this regard.

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we have reviewed the entire record in this case and have found no

meritorious issues for appeal. We therefore affirm Moss’

conviction and sentence. This court requires that counsel inform

his 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