                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4729


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TONY LEE SWANN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00078-WO-1)


Submitted:   April 19, 2013                       Decided:   May 10, 2013


Before KING and    DAVIS,     Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant.   Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony Lee Swann appeals his conviction and twenty-two

months     sentence       entered    pursuant         to     his    guilty       plea   to

possession     of    a    firearm   by   a       convicted    felon.        On    appeal,

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that there are no meritorious issues

for   appeal        but    questioning           whether     Swann’s     prior      state

conviction for involuntary manslaughter was a predicate felony

and whether Swann’s sentence was reasonable. 1                     Swann has filed a

pro   se   supplemental       brief,     rearguing          the    issues    raised     by

counsel.     We affirm.

             18 U.S.C. § 922(g)(1) (2006) prohibits the possession

of a firearm by any person “who has been convicted in any court

of, a crime punishable by imprisonment for a term exceeding one

year.”       At     the     time    of   Swann’s           conviction,      involuntary

manslaughter was a Class H felony.                    North Carolina v. Powell,

426 S.E.2d 91, 92 (N.C. App. 1993).                    The presumptive range of

imprisonment for a Class H felony was three years in prison,

with a maximum punishment of ten years.                     Id.    Swann was given to

a three-year suspended sentence.                    Accordingly, as Swann could




      1
       The district court imposed a variance sentence above the
advisory Guidelines range of 10-16 months in prison.



                                             2
have been sentenced to over a year in prison, Swann’s prior

conviction was a proper predicate under the statute. 2

                We     review    sentences        for   reasonableness           “under    a

deferential           abuse-of-discretion          standard.”         Gall   v.      United

States, 552 U.S. 38, 41 (2007).                    This review entails appellate

consideration            of     both    the        procedural     and        substantive

reasonableness of the sentence.                      Id. at 51.        In determining

procedural           reasonableness,     we   consider     whether         the    district

court      properly      calculated     the   defendant’s       advisory         Guidelines

range,      gave       the    parties   an        opportunity    to    argue       for    an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2006)

factors, and sufficiently explained the selected sentence.                                Id.

at 49-51.            If the sentence is free of significant procedural

error, we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                       Id. at 51.

                “When rendering a sentence, the district court must

make       an    individualized         assessment        based       on     the     facts

presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir.

       2
       In his pro se brief, Swann appears to argue that, because
his sentence was suspended, it did not qualify as a predicate
offense.   However, a qualifying predicate felony is one for
which Swann himself could have been sentenced to a prison term
exceeding one year. See United States v. Simmons, 649 F.3d 237,
247 (4th Cir. 2011). It is not required that Swann was actually
sentenced to serve (or did in fact serve) over one year.
Likewise, Swann’s assertion that his “involuntary” crime could
not constitute a predicate offense is without support.



                                              3
2009) (internal quotation marks and emphasis omitted), and must

“adequately explain the chosen sentence to allow for meaningful

appellate       review     and     to    promote       the    perception          of       fair

sentencing.”           Gall, 552 U.S. at 50.                 When a district court

imposes     a    sentence       that     falls     outside        of     the    applicable

Guidelines      range,     we    consider       “whether     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.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).                                     In

conducting      this     review,    we    “must    give      due    deference         to    the

district    court’s       decision      that     the   §   3553(a)       factors,       on    a

whole, justify the extent of the variance.”                            Gall, 552 U.S. at

51.

            Here, counsel does not point to any specific alleged

error in Swann’s sentence.               In his pro se brief, Swann asserts

that   he   did    not     have    an    opportunity         to    explain      his     prior

conviction or to note that he was permitted to possess a gun

under North Carolina law.                 However, the district court heard

extensive argument by counsel regarding the circumstances of the

prior conviction, and Swann declined to allocute.                                Moreover,

Swann admitted in the factual basis that his prior conviction

had not been expunged and that his civil rights had not been

restored.

                                            4
           The district court clearly heard Swann’s arguments for

leniency, but the court found the aggravating factors of Swann’s

crime and background outweighed the mitigating factors.                             The

court    properly       considered    the        nature      and   circumstances      of

Swann’s conviction and the fact that his relevant conduct was

more serious than mere possession of a firearm.                        Finally, the

court gave specific, detailed reasoning for the upward variance.

Accordingly, the sentence is not procedurally unreasonable.

           Next, we conclude that the sentence was substantively

reasonable, as it was within the prescribed statutory range and

resulted     from   the    district     court’s         proper     weighing   of    the

relevant § 3553(a) factors.            Here, the district court explained

at length its decision to sentence Swann above the Guidelines

range, referring multiple times to Swann’s continued, illegal

possession     of   a    firearm;     his       lack    of   credibility;     and   his

reckless behavior while possessing the firearm.                        The district

court’s decision to depart six months above the Guidelines range

is supported by the record and does not constitute an abuse of

discretion.

           This court requires that counsel inform her 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 in this court for

                                            5
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 this decisional process.


                                                                  AFFIRMED




                                    6
