UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4720

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHERMAN WAYNE HARRELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at New Bern. Terrence W. Boyle,

District Judge. (4:06-cr-00041-BO)

Submitted: July 17, 2008 Decided: August 14, 2008

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Banumathi Rangarajan, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Sherman Wayne Harrell pled guilty pursuant to a written

plea agreement to possession of a firearm by a felon, in violation

of 18 U.S.C. § 922(g)(1) (2000). Harrell was sentenced to 293

months’ imprisonment. Finding no error, we affirm.

On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting there are no meritorious

grounds for appeal, but questioning whether Harrell’s

classification as an armed career criminal is constitutional in

light of Blakely v. Washington, 542 U.S. 296 (2004), because it was

based on prior convictions that were not charged in the indictment

and found by a jury beyond a reasonable doubt, nor admitted. In

his pro se supplemental brief, Harrell contends his conviction in

federal court on a charge arising out of the same criminal conduct

on which he was charged and convicted in state court violates the

Double Jeopardy Clause. The Government filed a responding brief,

stating that while the issue raised by counsel on appeal falls

outside the scope of the appellate waiver provision in Harrell’s

plea agreement, it is nevertheless foreclosed by Circuit precedent.

After United States v. Booker, 543 U.S. 220 (2005),

sentencing courts are still required to calculate the applicable

advisory guideline range based on appropriate findings of fact.

United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). We

have previously noted that sentencing factors should continue to be
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evaluated based on the preponderance of the evidence. United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Moreover, in

United States v. Cheek, 415 F.3d 349, 352-54 (4th Cir. 2005), we

specifically determined that prior convictions used as a basis for

enhancement under the ACCA need not be charged in the indictment

nor proven beyond a reasonable doubt.

The district court followed the necessary procedural

steps in sentencing Harrell, appropriately treating the Sentencing

Guidelines as advisory, properly calculating and considering the

applicable Guidelines range, and weighing the relevant 18 U.S.C.

§ 3553(a) (2000) factors. See United States v. Davenport, 445 F.3d

366, 370 (4th Cir. 2006). Furthermore, Harrell’s 293-month

sentence, which is no greater than either the Guidelines range or

the statutory maximum, may be presumed reasonable. See United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Thus, we

conclude the district court did not abuse its discretion in

imposing the chosen sentence. See Gall v. United States, 128 S.

Ct. 586, 597 (2007).

Additionally, we conclude Harrell’s conviction in federal

court arising out of the same criminal conduct on which he was

previously charged and convicted in state court does not violate

the Double Jeopardy Clause. “A central feature of double

jeopardy’s definition of offense is the ‘dual sovereignty

doctrine.’ Applying this doctrine, the Supreme Court has
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continually held that federal and state crimes are not the same

offense, no matter how identical the conduct they proscribe.”

United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm the judgment of the district court.

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 the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel may move this court for 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 the

decisional process.

AFFIRMED