UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4189

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KNOWLEDGE UNDERSTANDING NEVELS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

District Judge. (1:04-cr-00256-NCT-2)

Submitted: August 22, 2008 Decided: September 9, 2008

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Milton B. Shoaf, Salisbury, North Carolina, for Appellant. Randall

S. Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Knowledge Understanding Nevels pled guilty to one count

of possession with intent to distribute crack cocaine, in violation

of 21 U.S.C.A. § 841(a)(1) & (b)(1)(A) (West 1999 & Supp. 2008).

He was sentenced to 245 months’ imprisonment. Nevels’ counsel

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

(1967), stating there were no meritorious grounds for appeal, but

raising for the court’s consideration whether the district court

abused its discretion by increasing Nevels’ offense level by two

for possessing a handgun and whether this court should consider

whether Nevels is eligible for resentencing under the reconstituted

guidelines for possession of crack cocaine. Finding no meritorious

issues for appeal, we affirm. 

A district court’s factual findings at sentencing are

reviewed for clear error. See 18 U.S.C.A. § 3742 (West 2000 &

Supp. 2008). Questions of law are reviewed de novo. United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Under U.S.

Sentencing Guidelines Manual § 2D1.1 (2006), “[t]he enhancement for

weapon possession . . . should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense.” USSG § 2D1.1 comment. (n.3). The

enhancement is appropriate if the Government establishes Nevels

constructively possessed the weapon. In so doing, the Government

“must produce evidence showing ownership, dominion, or control over
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the contraband itself or the premises or the vehicle in which the

contraband is concealed.” United States v. Blue, 957 F.2d 106, 107

(4th Cir. 1992) (internal quotation marks omitted). We find no

clear error in the district court’s findings. Thus, we will not

disturb the two-level enhancement. 

Insofar as Nevels may wish to take advantage of the

recent amendments to the Sentencing Guidelines regarding the

offense levels for crack cocaine, he should file a motion under 18

U.S.C. § 3582(c)(2) (2000) with the district court. United

States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).

This court will affirm a sentence imposed by the district

court if it is within the statutorily prescribed range and

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

The court reviews Nevels’ sentence under a deferential abuse-ofdiscretion standard. See Gall v. United States, 128 S. Ct. 586,

597 (2007). The first step in this review requires the court to

ensure that the district court committed no significant procedural

error, such as improperly calculating the guideline range. United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128

S. Ct. 2525 (2008). In assessing a sentencing court’s application

of the Guidelines, this court reviews the court’s legal conclusions

de novo and its factual findings for clear error. United States v.

Allen, 446 F.3d 522, 527 (4th Cir. 2006). 
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The court then considers the substantive reasonableness

of the sentence imposed, taking into account the totality of the

circumstances. Gall, 128 S. Ct. at 597. At this stage of review,

the court presumes that a sentence within a properly calculated

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

178, 193 (4th Cir. 2007); see also Gall, 128 S. Ct. at 597 (“If the

sentence is within the Guidelines range, the appellate court may,

but is not required to, apply a presumption of reasonableness.”);

Rita v. United States, 127 S. Ct. 2456 (2007) (upholding this

court’s presumption of reasonableness).

In sentencing, the district court should first calculate

the guideline range and give the parties an opportunity to argue

for whatever sentence they deem appropriate. United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The court should then

consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors

to determine whether they support the sentence requested by either

party. Id. While a district court must consider the statutory

factors and explain its sentence, it need not explicitly reference

§ 3553(a) or discuss every factor on the record, particularly when

the court imposes a sentence within a properly calculated guideline

range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006). We find the sentence reasonable. 

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We
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therefore affirm Nevels’ conviction and sentence. This court

requires counsel inform his client, in writing, of the right to

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

If he requests a petition be filed, but counsel believes 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 Nevels. 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