UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4316

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONE ALFONSO HOLMES,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00601-WO-1)

Submitted: January 29, 2021 Decided: February 19, 2021

Before WILKINSON, KING, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Kathleen A. Gleason, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Antone Alfonso Holmes pleaded guilty to distribution of cocaine base, in violation

of

(a)(1), (b)(1)(C), and received a 54-month sentence. On appeal,

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

(1967),

questioning whether Holmes’ sentence is substantively reasonable. Holmes has filed a pro

se brief arguing that the district court either breached the plea agreement or abused its

discretion by varying upward to account for conduct related to charges that had been

dismissed pursuant to the plea agreement. For the following reasons, we affirm.

We review criminal sentences for both procedural and substantive reasonableness

“under a deferential abuse-of-discretion standard.” United States v. Lynn,

(4th Cir. 2019) (internal quotation marks omitted). In determining procedural

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

Guidelines range, treated the Guidelines as advisory, gave the parties an opportunity to

argue for an appropriate sentence, considered the

(a) factors, selected a

sentence based on accurate facts, and sufficiently explained the chosen sentence. Gall v.

United States,

(2007). “[I]f, and only if, we find the sentence

procedurally reasonable” will we then consider whether the sentence is substantively

reasonable. United States v. Provance,

(4th Cir. 2019) (internal

quotation marks omitted). In doing so, we look to “the totality of the circumstances to

determine whether the district court abused its discretion in applying the standards set out

in [§] 3553(a)(2).” United States v. Bollinger,

(4th Cir. 2015). “Where,

as here, the sentence is outside the advisory Guidelines range, we must consider whether

2 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. Nance,

(4th Cir. 2020) (internal quotation marks

omitted), cert. denied, No. 20-5825,

(U.S. Nov. 2, 2020). After

reviewing the record, we conclude that Holmes’ sentence is procedurally and substantively

reasonable. We further conclude that Holmes’ argument that the court breached the plea

agreement is without merit because the court was not a party to the agreement, and nothing

in the plea agreement prohibited the court from considering the conduct related to the

dismissed counts as relevant conduct.

Pursuant to Anders, we have reviewed the entire record and have found no

meritorious issues for appeal. We therefore affirm the district court’s judgment. This court

requires that counsel inform Holmes, in writing, of the right to petition the Supreme Court

of the United States for further review. If Holmes 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 Holmes.

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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