UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4050

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSEPH LOUIS YOUNG, III,

Defendant - Appellant.

Appeal from the United States District Court for the District of

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

Judge. (6:07-cr-00113-GRA-1)

Submitted: August 26, 2008 Decided: October 14, 2008

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

Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Lora E. Collins, Assistant Federal Public Defender, Greenville,

South Carolina, for Appellant. Elizabeth Jean Howard, Assistant

United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

We granted Young’s May 2008 motion for extension of time to

file a pro se supplemental brief, but he did not file a brief

within the allotted time. He filed a second motion for extension

of time in July 2008, which we denied. However, we have considered

the substantive claims raised in the July 2008 motion.

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PER CURIAM:

Joseph Young, III, appeals from his conviction and

262-month sentence following a guilty plea to one count of being a

felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g) (2000), one count of possession with intent to distribute

marijuana and crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B) (2000), and one count of possession of a firearm during

a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)

(2000). Young’s counsel filed a brief pursuant to Anders v.

California, 286 U.S. 738, 744 (1967), stating that there were no

meritorious issues for appeal, but questioning whether the district

court complied with Fed. R. Crim. P. 11 in accepting Young’s guilty

plea, and whether Young’s sentence is reasonable. In a pro se

pleading, Young contends that his conviction violates the Double

Jeopardy Clause, that he did not actually enter a guilty plea as to

the drug charge, that counsel promised him a lower sentence, and

that the court erred in sentencing him as a career offender.1 For

the following reasons, we affirm Young’s convictions, but vacate

and remand for resentencing.

During Young’s plea hearing, the district court properly

informed him of the rights he was forfeiting as a result of his
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plea and the nature of the charges and penalties he faced, found

that Young was competent and entering his plea voluntarily, and

determined there was a sufficient factual basis for the plea.

Therefore, the record establishes Young knowingly and voluntarily

entered into his guilty plea with a full understanding of the

consequences and there was no error in the district court’s

acceptance of his plea.

Young also questions the reasonableness of his sentence.

Following United States v. Booker, 543 U.S. 220 (2005), a district

court must engage in a multi-step process at sentencing. First, it

must calculate the appropriate advisory Guidelines range. It must

then consider the resulting range in conjunction with the factors

set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and

determine an appropriate sentence. United States v. Davenport, 445

F.3d 366, 370 (4th Cir. 2006). The appellate court reviews the

sentence for abuse of discretion. Gall v. United States, 128 S.

Ct. 586, 597 (2007). The court must first ensure that the district

court committed no procedural error, such as “failing to calculate

(or improperly calculating) the Guidelines range, 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.” Id.
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Our review of the record reveals that the district court

committed procedural error with respect to Young’s sentence by

apparently treating the Guidelines as mandatory. Although Young’s

262-month sentence is below the statutory maximum sentence

applicable to his offense and within the applicable guidelines

range, the district court appeared to believe it was confined to

that range. Specifically, during the sentencing hearing, although

the court acknowledged the guidelines were advisory, it also

stated:

You’ve got three offenses, prior offenses. And the

Congress of the United States says if you have three

prior offenses, you are a career offender and, therefore,

your sentence is - the least amount you can get is 262

months.

. . .

You were caught three times. You’ve been convicted three

times. And being convicted three times, that’s all there

is to it. Congress says you shall serve a minimum of 262

months to a high of 327 months.

. . .

I’m giving you the least, or intend to give you the least

I can under the law. You are a criminal history category

of 6, which is a career offender.

Moreover, although the district court stated generally that it

considered the § 3553(a) factors, it failed to elaborate on their

significance in determining Young’s sentence. Accordingly, because

the record does not clearly confirm the district court’s

understanding that it possessed authority to sentence Young below

the properly calculated Guidelines range, we conclude that the
2We note that the district court did not have the benefit of

Gall when it imposed sentence. In Gall, the Supreme Court rejected

a “rule that requires ‘extraordinary’ circumstances to justify a

sentence outside the Guidelines range,” and held that a district

court may not accord a presumption of reasonableness to the

advisory Guidelines range. Gall, 128 S. Ct. at 595-97.

3By this disposition, we indicate no view as to the sentence

to be imposed upon Young on remand, leaving that determination in

the first instance to the district court.

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district court abused its discretion in imposing the sentence.2 We

accordingly vacate and remand for resentencing.3

Turning to the issues Young raises pro se, Young first

contends that his current conviction violates the Double Jeopardy

Clause because he has already served state time on the drug offense

(Count Two). However, the dual sovereignty doctrine permits

prosecution by state and federal sovereigns on the same charges.

Abbate v. United States, 359 U.S. 187 (1959). He also claims that

he did not actually enter a guilty plea as to the drug charge, but

that claim is belied by the record. Young also asserts that

counsel promised him a lower sentence than he received, but he

stated under oath that no one promised him a particular sentence.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Finally, we find

no merit to Young’s claim that a juvenile offense was wrongly

included in determining that he is a career offender; the juvenile

offense in question was properly included in his criminal history

pursuant to U.S. Sentencing Guidelines Manual § 4A1.2(d)(2)(A)

(2006).
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Pursuant to Anders, we have examined the entire record

and find no other meritorious issues for appeal. We therefore

affirm Young’s conviction, but vacate his sentence and remand for

resentencing. We grant Young’s motions to accept his affidavit and

exhibit but deny his motion to reconsider the court’s July 24

order. 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 Young requests that such 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 Young. 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 IN PART,

VACATED IN PART, AND REMANDED