UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4384

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

MARC EDWIN APPLEWHITE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

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

District Judge. (1:07-cr-00336-NCT-1) 

Submitted: November 24, 2008 Decided: December 29, 2008 

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Bryan Gates, Winston-Salem, North Carolina, for Appellant. 

Angela Hewlett Miller, Assistant United States Attorney, 

Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Marc Edwin Applewhite appeals the twenty-seven month 

sentence imposed following his guilty plea to one count of wire 

fraud, in violation of 18 U.S.C. § 1343 (2006) (“Count 7”), one 

count of possession of a forged security, in violation of 18 

U.S.C. § 513(a) (2006) (“Count 9”), and the twenty-four month 

consecutive sentence imposed following his guilty plea to one 

count of aggravated identity theft, in violation of 18 U.S.C. 

§ 1028A(a)(1) (2006) (“Count 8”). Applewhite’s attorney filed a 

brief in accordance with Anders v. California, 386 U.S. 738 

(1967), certifying there are no meritorious grounds for appeal, 

but questioning the calculation of Applewhite’s criminal history 

and the reasonableness of his sentence. Although advised of his 

right to do so, Applewhite has declined to file a pro se 

supplemental brief. Finding no reversible error, we affirm. 

 Applewhite first contends the district court 

erroneously ascribed two criminal history points for convictions 

he did not sustain. Because Applewhite did not raise this issue 

before the district court, our review is for plain error. Fed. 

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 

(1993). Applewhite provides no evidence suggesting the two 

challenged convictions were improperly counted, and there is no 

basis in the record on which to find the district court 

committed any error — let alone plain error — in calculating 

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Applewhite’s criminal history. Accordingly, we reject this 

basis for appeal. 

 We further conclude Applewhite’s sentence was 

reasonable. The Supreme Court has instructed that, 

“[r]egardless of whether the sentence imposed is inside or 

outside the Guidelines range, the appellate court must review 

the sentence under an abuse-of-discretion standard.” Gall v. 

United States, 128 S. Ct. 586, 597 (2007). Appellate courts are 

charged with reviewing sentences for reasonableness. Id. at 

594, 597. Reasonableness review requires consideration of both 

the procedural and substantive reasonableness of a sentence. 

Id. at 597. 

 In determining whether a sentence is procedurally 

reasonable, we first assess whether the district court properly 

calculated the defendant’s advisory Guidelines range. Id. at 

596-97. We must then consider whether the district court failed 

to consider the 18 U.S.C. § 3553(a) (2006) factors and any 

arguments presented by the parties, selected a sentence based on 

“clearly erroneous facts,” or failed to sufficiently explain the 

selected sentence. Id. at 597; United States v. Pauley, 511 

F.3d 468, 473 (4th Cir. 2007). Finally, we review the 

substantive reasonableness of the sentence, “taking into account 

the ‘totality of the circumstances.’” Pauley, 511 F.3d at 473 

(quoting Gall, 128 S. Ct. at 597). We afford sentences that 

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fall within the properly calculated Guidelines range a 

presumption of reasonableness, see id., a presumption permitted 

by the Supreme Court. Rita v. United States, 127 S. Ct. 2456, 

2459, 2462 (2007). 

 The district court properly calculated Applewhite’s 

sentencing range under the Guidelines* and invited counsel to 

make any relevant argument pursuant to the § 3553(a) sentencing 

factors. After hearing counsel’s arguments, permitting 

Applewhite the opportunity to allocute, and considering the 

§ 3553(a) factors, the court sentenced Applewhite to a total of 

fifty-one months’ imprisonment, which is within the properly 

calculated Guidelines range. As our review of the record 

reveals no procedural or substantive defect in Applewhite’s 

sentence, we conclude Applewhite cannot overcome the presumption 

of reasonableness that attaches to his sentence. See Rita, 127 

S. Ct. at 2459, 2462. 

 *

 The district court calculated that Applewhite’s total 

adjusted offense level for Counts 7 and 9 was fourteen, and that 

he had four criminal history points. U.S. Sentencing Guidelines 

Manual (“USSG”) § 2B1.1(a)(1)(B), (b)(1)(F) (2007). Thus, with 

a category III criminal history, Applewhite’s advisory 

Guidelines range on Counts 7 and 9 was twenty-one to twentyseven months’ imprisonment. USSG ch. 5, pt. A, sentencing 

table. Applewhite also faced a mandatory twenty-four month 

consecutive sentence on Count 8. 18 U.S.C. § 1028A(a)(1); USSG 

§ 2B1.6(a). 

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 Although not raised by counsel, we further note there 

was no infirmity in Applewhite’s conviction. The district court 

fully complied with the requirements of Fed. R. Crim. P. 11 in 

conducting Applewhite’s plea hearing. The district court 

advised Applewhite regarding his rights under federal law, the 

nature and elements of the charges to which he was pleading 

guilty, and the applicable statutory mandatory minimum, 

statutory maximum, and period of supervised release. The court 

also questioned Applewhite to ensure he was competent to plead 

guilty. Applewhite informed the court that, prior to signing 

the plea agreement, he had discussed it with his attorney, with 

whom he was satisfied. The district court further accepted the 

written factual basis of Applewhite’s guilty plea. There simply 

was no Rule 11 error. 

 In accordance with Anders, we have reviewed the 

entirety of the record and found no meritorious issues. 

Accordingly, we affirm the district court’s judgment. We 

further deny counsel’s motion to withdraw from representation. 

We require that counsel inform Applewhite, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Applewhite 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 

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a copy thereof was served on Applewhite. We dispense with oral 

argument because the facts and legal contentions are adequately 

set forth in the materials before the court and argument would 

not aid the decisional process. 

 AFFIRMED