UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4259

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALVIN EUGENE MCSWAIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

District Judge. (3:05-cr-00079)

Submitted: October 31, 2006 Decided: December 1, 2006

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, C. Nicks Williams, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following his guilty plea to one count of possession of

a firearm by a convicted felon, in violation of 18 U.S.C.A.

§§ 922(g)(1), 924(e)(2) (West 2000 & Supp. 2006), Alvin Eugene

McSwain was sentenced to ninety-six months in prison. McSwain

timely appealed. McSwain’s counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that in his

opinion there are no meritorious grounds for appeal, but

questioning the validity of McSwain’s conviction on the ground that

the firearm McSwain possessed was inoperable and questioning the

reasonableness of McSwain’s sentence. McSwain was notified of his

right to file a pro se supplemental brief but did not file one.

McSwain first asserts that his conviction under

§ 922(g)(1) is invalid because the pistol he possessed was missing

a firing pin and therefore was inoperable. However, it is well

established that a weapon does not have to be operable to qualify

as a firearm under § 922(g)(1). United States v. Willis, 992 F.2d

489, 491 n.2 (4th Cir. 1993); see also United States v. Brown, 117

F.3d 353, 355-56 (7th Cir. 1997). 

Next, McSwain argues that the district court erred by

imposing a sentence at the top of the guideline range. Following

the Supreme Court’s decision in United States v. Booker, 543 U.S.

220 (2005), we review sentences for reasonableness. A sentence

imposed within the properly calculated guideline range is
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presumptively reasonable. United States v. Green, 436 F.3d 449,

457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

McSwain asserts that the sentence imposed by the district

court is unreasonable because he contends that the trial court

failed to take into consideration the special circumstances of his

case, as required by 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006). A sentencing court is presumed to have considered the

factors set out in § 3553(a) unless the record indicates otherwise

and is not required to explicitly discuss each § 3553(a) factor.

United States v. Legree, 205 F.3d 724, 728-29 (4th Cir. 2000)

(dealing with denial of motion to reduce sentence); see also United

States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006), petition for

cert. filed, __ U.S.L.W. __ (U.S. June 20, 2006) (No. 05-11659),

and United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)

(holding that “nothing in Booker requires the district court to

state on the record that it has explicitly considered each of the

§ 3553(a) factors or to discuss each of the § 3553(a) factors”).

In imposing McSwain’s sentence, the district court stated

that it had considered the arguments of both the defense and the

government and concluded that McSwain’s long and violent criminal

history and the nature of the instant offense justified a sentence

at the top of the guideline range. Because the district court

adequately explained the basis for its sentencing decision, we find

the resulting ninety-six-month sentence to be reasonable. See
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United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006),

petition for cert. filed, __ U.S.L.W. __ (U.S. July 21, 2006) (No.

06-5439); Green, 436 F.3d at 457.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm McSwain’s conviction and sentence. This court

requires that counsel inform McSwain, in writing, of the right to

petition the Supreme Court of the United States for further review.

If McSwain 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 McSwain.

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