UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4729

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

TONY LEE SWANN,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:11-cr-00078-WO-1)

Submitted: April 19, 2013 Decided: May 10, 2013

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North 

Carolina, for Appellant. Michael A. DeFranco, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Tony Lee Swann appeals his conviction and twenty-two 

months sentence entered pursuant to his guilty plea to 

possession of a firearm by a convicted felon. On appeal, 

counsel has filed a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), asserting that there are no meritorious issues 

for appeal but questioning whether Swann’s prior state 

conviction for involuntary manslaughter was a predicate felony 

and whether Swann’s sentence was reasonable.1

 Swann has filed a 

pro se supplemental brief, rearguing the issues raised by 

counsel. We affirm.

18 U.S.C. § 922(g)(1) (2006) prohibits the possession 

of a firearm by any person “who has been convicted in any court 

of, a crime punishable by imprisonment for a term exceeding one 

year.” At the time of Swann’s conviction, involuntary 

manslaughter was a Class H felony. North Carolina v. Powell, 

426 S.E.2d 91, 92 (N.C. App. 1993). The presumptive range of 

imprisonment for a Class H felony was three years in prison, 

with a maximum punishment of ten years. Id. Swann was given to 

a three-year suspended sentence. Accordingly, as Swann could 

 1 The district court imposed a variance sentence above the 

advisory Guidelines range of 10-16 months in prison.
3

have been sentenced to over a year in prison, Swann’s prior 

conviction was a proper predicate under the statute.2 

We review sentences for reasonableness “under a 

deferential abuse-of-discretion standard.” Gall v. United 

States, 552 U.S. 38, 41 (2007). This review entails appellate 

consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. In determining 

procedural reasonableness, we consider whether the district 

court properly calculated the defendant’s advisory Guidelines 

range, gave the parties an opportunity to argue for an 

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006) 

factors, and sufficiently explained the selected sentence. Id.

at 49-51. If the sentence is free of significant procedural 

error, we review it for substantive reasonableness, “tak[ing] 

into account the totality of the circumstances.” Id. at 51.

 “When rendering a sentence, the district court must 

make an individualized assessment based on the facts 

presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 

 2 In his pro se brief, Swann appears to argue that, because 

his sentence was suspended, it did not qualify as a predicate 

offense. However, a qualifying predicate felony is one for 

which Swann himself could have been sentenced to a prison term 

exceeding one year. See United States v. Simmons, 649 F.3d 237, 

247 (4th Cir. 2011). It is not required that Swann was actually 

sentenced to serve (or did in fact serve) over one year. 

Likewise, Swann’s assertion that his “involuntary” crime could 

not constitute a predicate offense is without support. 
4

2009) (internal quotation marks and emphasis omitted), and must 

“adequately explain the chosen sentence to allow for meaningful 

appellate review and to promote the perception of fair 

sentencing.” Gall, 552 U.S. at 50. When a district court 

imposes a sentence that falls outside of the applicable 

Guidelines range, we consider “whether the sentencing court 

acted reasonably both with respect to its decision to impose 

such a sentence and with respect to the extent of the divergence 

from the sentencing range.” United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). In 

conducting this review, we “must give due deference to the 

district court’s decision that the § 3553(a) factors, on a 

whole, justify the extent of the variance.” Gall, 552 U.S. at 

51.

Here, counsel does not point to any specific alleged 

error in Swann’s sentence. In his pro se brief, Swann asserts 

that he did not have an opportunity to explain his prior 

conviction or to note that he was permitted to possess a gun 

under North Carolina law. However, the district court heard 

extensive argument by counsel regarding the circumstances of the 

prior conviction, and Swann declined to allocute. Moreover, 

Swann admitted in the factual basis that his prior conviction 

had not been expunged and that his civil rights had not been 

restored. 
5

The district court clearly heard Swann’s arguments for 

leniency, but the court found the aggravating factors of Swann’s 

crime and background outweighed the mitigating factors. The 

court properly considered the nature and circumstances of 

Swann’s conviction and the fact that his relevant conduct was 

more serious than mere possession of a firearm. Finally, the 

court gave specific, detailed reasoning for the upward variance. 

Accordingly, the sentence is not procedurally unreasonable.

Next, we conclude that the sentence was substantively 

reasonable, as it was within the prescribed statutory range and 

resulted from the district court’s proper weighing of the 

relevant § 3553(a) factors. Here, the district court explained

at length its decision to sentence Swann above the Guidelines 

range, referring multiple times to Swann’s continued, illegal 

possession of a firearm; his lack of credibility; and his 

reckless behavior while possessing the firearm. The district 

court’s decision to depart six months above the Guidelines range 

is supported by the record and does not constitute an abuse of 

discretion. 

This court requires that counsel inform her 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 
6

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 this decisional process.

AFFIRMED