UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4861

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MELVIN CORTEZ CARTER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Elizabeth City. James C. Dever 

III, District Judge. (2:10-cr-00059-D-1)

Submitted: March 9, 2012 Decided: April 12, 2012

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David L. Neal, Hillsborough, North Carolina, for Appellant. 

Jennifer P. May-Parker, Assistant United States Attorney, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Melvin Cortez Carter seeks to appeal his 141-month 

sentence following a guilty plea to conspiracy to commit a Hobbs 

Act robbery, in violation of 18 U.S.C. § 1951(b)(1) (2006), and 

use of firearms during a crime of violence and aiding and 

abetting, in violation of 18 U.S.C. §§ 924(c), 2 (2006). 

Carter’s counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), questioning whether the 

district court erroneously applied a two-level sentencing 

enhancement for reckless endangerment during flight, pursuant to 

the U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.2 (2010). 

The Government has moved to dismiss Carter’s appeal as 

untimely. In criminal cases, the defendant must file the notice 

of appeal within fourteen days after the entry of judgment. 

Fed. R. App. P. 4(b)(1)(A). With or without a motion, upon a 

showing of excusable neglect or good cause, the district court 

may grant an extension of up to thirty days to file a notice of 

appeal. Fed. R. App. P. 4(b)(4); United States v. Reyes, 759 

F.2d 351, 353 (4th Cir. 1985).

The district court entered judgment on August 5, 2011, 

and the fourteen-day appeal period expired on Friday, August 19, 

2011. The district court received Carter’s notice of appeal on 

August 23, four days outside the appeal period. However, 

Carter’s pro se notice of appeal is dated August 18, 2011, and 
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the envelope is postmarked August 19, 2011, by the inmate mail 

system. Although Carter was represented by counsel at the time, 

he nonetheless receives the benefit of the mailbox rule 

announced in Houston v. Lack, 487 U.S. 266 (1988), as he filed 

his notice of appeal pro se while incarcerated. See United 

States v. Moore, 24 F.3d 624, 625-26 (4th Cir. 1994) (applying 

mailbox rule to a pro se notice of appeal filed by incarcerated 

petitioner represented by counsel). As Carter handed his notice 

of appeal to prisoner officials for mailing on August 19 at the 

latest, his notice of appeal was timely filed. We therefore 

deny the Government’s motion to dismiss. 

We review a sentence for reasonableness, applying an 

abuse of discretion standard. Gall v. United States, 552 U.S. 

38, 47, 51 (2007). This review requires consideration of both 

the procedural and substantive reasonableness of a sentence. 

Id.; see United States v. Layton, 564 F.3d 330, 335 (4th Cir. 

2009). In determining the procedural reasonableness of a 

sentence, we consider whether the district court properly 

calculated the Guidelines range, treated the Guidelines as 

advisory, considered the 18 U.S.C. § 3553(a) factors, analyzed 

any arguments presented by the parties, and sufficiently 

explained the selected sentence. Gall, 552 U.S. at 51. This 

court next assesses the substantive reasonableness of the 

sentence, “taking into account the ‘totality of the 
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circumstances, including the extent of any variance from the 

Guidelines range.’” United States v. Pauley, 511 F.3d 468, 473 

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). This court 

presumes that a sentence within a properly calculated Guidelines 

range is reasonable. United States v. Allen, 491 F.3d 178, 193 

(4th Cir. 2007).

Under USSG § 3C1.2, a defendant is eligible for a twolevel sentencing enhancement if he “recklessly created a 

substantial risk of death or serious bodily injury to another 

person in the course of fleeing from a law enforcement officer.” 

In this case, Carter conspired with three other individuals to 

rob several convenience stores. After the first robbery, law 

enforcement officers observed Carter and his co-conspirators 

casing a second convenience store the following evening. A high 

speed vehicle pursuit ensued, with Carter as the driver of the 

getaway vehicle. Carter drove his vehicle through two stop 

signs and residential neighborhoods, reaching speeds in excess 

of 55 mph in a 35 mph zone, while armed with a loaded handgun. 

On these facts, we find that the district court did not commit 

procedural error in applying a two-level sentencing enhancement 

for reckless endangerment during flight. In addition, the court 

used the correct advisory Guidelines range, explained its 

reasoning, considered the § 3553(a) factors, and sentenced 

Carter below the applicable Guidelines range. Accordingly, we 
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conclude that Carter’s sentence was both procedurally and 

substantively sound. 

In accordance with Anders, we have reviewed the entire 

record for meritorious issues and have found none. We therefore 

affirm the district court’s judgment. This court requires that 

counsel inform Carter, in writing, of his right to petition the 

Supreme Court of the United States for further review. If 

Carter 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 Carter. 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