                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4595


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

KEVIN GUNTHARP,

                  Defendant– Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00149-NCT-1)


Submitted:   March 31, 2011                 Decided:   April 4, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael A. DeFranco, Angela Hewlett Miller, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kevin    Guntharp      pled    guilty      to   possession       of    child

pornography.           The district court sentenced him to 48 months’

imprisonment.          On appeal, Guntharp’s counsel filed a brief in

accordance      with     Anders      v.   California,       386    U.S.    738      (1967),

stating that, in counsel’s view, there are no meritorious issues

for appeal, but questioning whether the guilty plea was knowing

and    voluntary        and     whether      the    district      court     abused         its

discretion by imposing Guntharp’s sentence.                         Guntharp filed a

pro se supplemental brief reiterating counsel’s arguments and

asserting that he should receive credit toward his sentence for

time spent on home confinement.                   Finding no reversible error, we

affirm.

               In the absence of a motion to withdraw a guilty plea,

this court reviews the adequacy of the guilty plea pursuant to

Fed. R. Crim. P. 11 for plain error.                           See United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                      Our   review       of    the

transcript of the plea hearing leads us to conclude that the

district       court     fully       complied      with    Rule    11     in    accepting

Guntharp’s guilty plea.               See United States v. DeFusco, 949 F.2d

114,    116,    119-20        (4th   Cir.    1991).        Accordingly,        we    affirm

Guntharp’s conviction.

               We have reviewed Guntharp’s sentence and conclude that

it    was   properly     calculated         and    is   reasonable.       See       Gall    v.

                                              2
United States, 552 U.S. 38, 51 (2007); United States v. Llamas,

599 F.3d 381, 387 (4th Cir. 2010).                      The district court followed

the     necessary          procedural       steps        in     sentencing         Guntharp,

appropriately         treated      the    sentencing       guidelines        as    advisory,

properly      calculated         and    considered       the    applicable        guidelines

range,    and       weighed      the   relevant     18    U.S.C.      §    3553(a)    (2006)

factors       in    relation      to    Guntharp’s       criminal      conduct      and   his

individual         circumstances.           The     district         court     specifically

considered the testimony of the expert witnesses that Guntharp

could be treated in the community, but questioned Guntharp’s

motivation to pursue treatment and found that Guntharp had not

pursued the treatment plan he initially proposed.                                 The court

also    emphasized         the    need    to     protect       the    public      from    such

offenses and determined that a term of imprisonment was needed.

However, the court did impose a variance sentence of 48 months,

down from the 78 to 97 month advisory guidelines range.                                     We

conclude that the district court did not abuse its discretion in

imposing the downward variance sentence of 48 months.                              See Gall,

552    U.S.    at    41;    United      States     v.    Engle,      592   F.3d    495,    500

(4th Cir.)         (holding      that    “due      deference”        is    given     to   the

district court’s decision to impose variance sentence), cert.

denied, 131 S. Ct. 165 (2010).

               Guntharp, in his pro se brief, argues that the court

failed to credit the testimony of the expert witnesses as to the

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propriety of community treatment for Guntharp and he argues that

he should receive credit toward his sentence for time spent on

home confinement.            As addressed above, the court did consider

the    testimony      as    to    the     possibility        of   allowing     Guntharp      to

obtain community treatment.                  In reliance on this testimony, the

district court allowed Guntharp to remain on home confinement

for an extended time prior to service of his sentence.                               However,

upon    consideration        of     all      the       sentencing    factors,       the    court

reasoned       that    a     term       of     incarceration         was     warranted      for

Guntharp’s      offense.          Contrary         to     Guntharp’s       claim,    his    time

spent    on    house       arrest       with    electronic          monitoring      does    not

constitute time served in “official detention” under 18 U.S.C.

§ 3585(b) (2006).           See Randall v. Whelan, 938 F.2d 522, 524 (4th

Cir. 1991); United States v. Insley, 927 F.2d 185, 186 (4th Cir.

1991).    Thus, no credit for this time is warranted.

              In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.       We therefore affirm Guntharp’s conviction and sentence.

This court requires that counsel inform Guntharp, in writing, of

the right to petition the Supreme Court of the United States for

further review.            If Guntharp 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

                                                   4
was served on Guntharp.      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




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