                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4607


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

CHARLES BOYD ALLEN, III,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Columbia. Terry L. Wooten, Chief District Judge. (3:16-cr-00973-TLW-1)


Submitted: May 30, 2018                                           Decided: June 13, 2018


Before MOTZ, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Janis Richardson Hall, JANIS RICHARDSON HALL, Greenville, South Carolina, for
Appellant. Beth Drake, United States Attorney, Alyssa Leigh Richardson, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Charles Boyd Allen, III, appeals from his conviction and the 70-month sentence

imposed after he pled guilty, pursuant to a plea agreement, to one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). 1

Allen asserts that the district court committed reversible error when it: (1) denied his

motion to dismiss the indictment based on the Uniform Commercial Code (UCC); (2)

failed to comply with the requirements of Fed. R. Crim. P. 11 when it accepted his guilty

plea; and (3) overruled his objection to his criminal history score calculation. Discerning

no error, we affirm.

       First, although Allen purports to assign error to the district court’s decision to deny

his motion to dismiss the indictment and its alleged failure to comply with Rule 11,

counsel expressly concedes the meritlessness of these arguments. Accordingly, they need

not be considered by this court. 2      Out of an abundance of caution, we nonetheless

conclude that Allen’s UCC argument is facially meritless and, after reviewing the

transcript of Allen’s plea colloquy, find that the district court fully complied with Rule 11

when it accepted Allen’s guilty plea.




       1
         Allen proceeded pro se during the criminal proceedings against him, but was at
all times represented and assisted by stand-by counsel.
       2
        It is important to note that counsel did not file Allen’s brief pursuant to Anders v.
California, 386 U.S. 738 (1967), which would require this court to conduct a more
searching review of the record.


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       We reject Allen’s argument that the district court should have omitted two points

from his criminal history score calculation. In reviewing a district court’s application of

the Sentencing Guidelines, we review the district court’s findings of fact for clear error

and its legal conclusions de novo. See United States v. Osbourne, 514 F.3d 377, 387 (4th

Cir. 2008).

       In his presentence investigation report (PSR), Allen’s Guidelines range was

calculated at 57 to 71 months in prison, based on a total offense level of 19 and a

category V criminal history. Most relevant to this appeal, Allen was assigned two

criminal history points for a prior South Carolina conviction for damaging or tampering

with a vehicle (tampering conviction). Allen objected to the assignment of these two

criminal history points, arguing that the tampering conviction should not be counted

because the conduct underlying that conviction was related to offense conduct listed in a

separate paragraph of his PSR, which was also assigned criminal history points. Allen

essentially asserted at sentencing that the two sentences that were imposed for these

convictions should be treated as a single prior sentence. The district court overruled

Allen’s objection and adopted the legal and factual conclusions contained in the PSR.

       Allen’s stand-by counsel was then afforded an opportunity to argue regarding an

appropriate sentence under the 18 U.S.C. § 3553(a) (2012) factors, during which time

counsel asked—based on the fact that Allen’s objection to his criminal history score

calculation was overruled—for a sentence at the bottom of Allen’s Guidelines range.

Although counsel that explained she was not asking for a variant sentence, counsel asked

the district court to consider the criminal history score calculation “under a fairness

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argument[.]” (J.A. 126-27). The district court expressed that it would consider counsel’s

argument, but explained that given Allen’s vast criminal history, the seriousness of

Allen’s conduct underlying the charge before it, and the need to protect the public, a 70-

month sentence was appropriate.

       Under U.S. Sentencing Guidelines Manual (USSG) § 4A1.2(a)(2) (2016), if a

defendant has multiple prior sentences, “[p]rior sentences always are counted separately

if the sentences were imposed for offenses that were separated by an intervening arrest

(i.e., the defendant is arrested for the first offense prior to committing the second

offense).” Id. “If there is no intervening arrest, prior sentences are counted separately

unless (A) the sentences resulted from offenses contained in the same charging

instrument; or (B) the sentences were imposed on the same day.” Id. Thus, a district

court must “[t]reat any prior sentence covered by (A) or (B) as a single sentence.” Id.

       Although Allen asserted at sentencing that his prior sentences should not be

counted separately under USSG § 4A1.2(a)(2), the district court correctly rejected the

argument. After determining that there had been no intervening arrest between the two

offenses, the district court correctly considered whether subsection (A) or (B) applied.

We conclude that, because the relevant offenses were charged in separate charging

documents and the sentences imposed on separate days, under USSG § 4A1.2(a)(2), the

court correctly counted the sentences separately.

       To the extent Allen suggests that the district court erroneously rejected his

argument for a lesser sentence under § 3553(a), we presume that a sentence within or

below a properly calculated Guidelines range is substantively reasonable. See United

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States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Moreover, “[t]hat presumption can only

be rebutted by showing that the sentence is unreasonable when measured against the . . .

§ 3553(a) factors.”   United States v. Vinson, 852 F.3d 333, 357-58 (4th Cir. 2017)

(internal quotation marks omitted).

       Allen’s argument that the district court should have imposed a lesser sentence

because the double-counting of his criminal history points was unfair amounts to little

more than his disagreement with the district court’s rationale for the sentence imposed.

The record establishes that the district court thoroughly considered Allen’s double-

counting argument, but disagreed with it, and—after considering the § 3553(a) factors it

deemed relevant—provided the parties with a well-reasoned and thorough rationale for

the sentence imposed.       Because Allen has failed to rebut the presumption of

reasonableness this court affords his within-Guidelines sentence, his sentence will not be

disturbed. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding that a mere

disagreement with the sentence imposed “is insufficient to justify reversal of the district

court”).

       Based on the foregoing, we affirm the district court’s judgment. 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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