UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4891

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES MICHAEL DANIEL, JR., a/k/a Mike D,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:18-cr-00214-1)

Submitted: October 26, 2020 Decided: October 30, 2020

Before NIEMEYER and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Stephanie S. Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Michael Daniel, Jr., pleaded guilty to possession with intent to distribute a

quantity of heroin, in violation of

(a)(1), and the district court sentenced

him to 51 months’ imprisonment. On appeal, Daniel’s counsel has filed a brief pursuant

to Anders v. California,

(1967), asserting there are no meritorious grounds

for appeal, but questioning whether the district court accurately calculated Daniel’s drug

quantity in determining his advisory Sentencing Guidelines range. Although notified of

his right to file a pro se supplemental brief, Daniel has not done so. 1 We affirm.

We review a sentence, “whether inside, just outside, or significantly outside the

Guidelines range[,] under a deferential abuse-of-discretion standard.” Gall v.

United States,

(2007). This review requires consideration of both the

procedural and substantive reasonableness of the sentence.

. In determining

procedural reasonableness, we consider whether the district court properly calculated the

defendant’s advisory Guidelines range, considered the

(a) factors,

analyzed any arguments presented by the parties, and sufficiently explained the selected

sentence.

“Regardless of whether the district court imposes an above, below, or within-

Guidelines sentence, it must place on the record an individualized assessment based on the

particular facts of the case before it.” United States v. Carter,

(4th Cir. 2009) (internal quotation marks omitted).

1 Because the Government has not moved to enforce the appellate waiver in Daniel’s plea agreement, we conduct a full review pursuant to Anders. See United States v. Poindexter,

(4th Cir. 2007).

2 Daniel’s counsel questions whether the district court correctly included money

seized in the execution of a search warrant as drug distribution proceeds in calculating the

drug quantity attributable to Daniel. We review “the district court’s calculation of the

quantity of drugs attributable to a defendant for sentencing purposes for clear error.”

United States v. Slade,

(4th Cir. 2011). “For sentencing purposes, the

government must prove the drug quantity attributable to a particular defendant by a

preponderance of the evidence.” United States v. Bell,

(4th Cir. 2011).

Daniel admitted under oath at his Fed. R. Crim. P. 11 hearing and in the signed

stipulation of facts that the money belonged to him and constituted proceeds from dealing

heroin. He presented no evidence at sentencing to contradict these admissions.

Accordingly, the district court did not clearly err in finding that the money could be

attributed to Daniel as drug distribution proceeds. See United States v. Lemaster,

(4th Cir. 2005) (“A defendant’s solemn declarations in open court . . . carry a

strong presumption of verity.” (internal quotation marks omitted)). Because the district

court correctly calculated Daniel’s advisory Guidelines range, 2 responded to counsel’s

nonfrivolous arguments, and provided an individualized assessment of the facts, Daniel’s

sentence is procedurally reasonable.

2 To the extent the district court misspoke in announcing the advisory Guidelines range as 41 to 57 months’ imprisonment, rather than 41 to 51 months, the error is harmless. See United States v. Boulware,

(4th Cir. 2010) (explaining harmless error doctrine). Later statements by the court make clear that the court was aware of the proper Sentencing Guidelines range when it imposed sentence.

3 In accordance with Anders, we have reviewed the record in this case and have found

no meritorious grounds for appeal. We therefore affirm the judgment of the district court.

This court requires that counsel inform Daniel, in writing, of the right to petition the

Supreme Court of the United States for further review. If Daniel 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 Daniel. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

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