                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 19-4086


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JACKIE BAGLEY, a/k/a Bruce, a/k/a Juice, a/k/a Juicy,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen L. Hollander, District Judge. (1:17-cr-00475-ELH-5)


Submitted: July 19, 2019                                          Decided: July 31, 2019


Before FLOYD and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Julie M. Reamy, JULIE M. REAMY, ATTORNEY AT LAW, LLC, Baltimore, Maryland,
for Appellant. Matthew DellaBetta, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Jackie Bagley appeals the 144-month sentence imposed following his guilty plea to

conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin

and detectible amounts of cocaine, cocaine base, and fentanyl, in violation of 21 U.S.C.

§ 846 (2012). Bagley’s counsel has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), stating that there are no meritorious issues for appeal but questioning whether

the district court imposed an unreasonable sentence by: (1) applying an incorrect criminal

history category in calculating Bagley’s Sentencing Guidelines range; and (2) failing to

consider Bagley’s allocution and the harsh conditions of his pretrial confinement in support

of his request for a lower sentence. Bagley was advised of his right to file a pro se

supplemental brief but has not done so. The Government has declined to file a response

brief. Finding no error, we affirm.

       We review a sentence for reasonableness, applying “a deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We first examine the

sentence for “significant procedural error,” such as improperly calculating the Guidelines

range, insufficiently considering the 18 U.S.C. § 3553(a) (2012) factors, or inadequately

explaining the chosen sentence. Gall, 552 U.S. at 51. “In assessing the district court’s

calculation of the Guidelines range, we review its legal conclusions de novo and its factual

findings for clear error.” United States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014).

       If we find no procedural error, we also must consider the substantive reasonableness

of the sentence under the totality of the circumstances. Gall, 552 U.S. at 51. A sentence

within a properly calculated Guidelines range is presumed reasonable. United States v.

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White, 810 F.3d 212, 230 (4th Cir. 2016).          Bagley bears the burden to rebut that

presumption “by showing that the sentence is unreasonable when measured against the

18 U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

       Counsel questions whether the district court miscalculated Bagley’s criminal history

category by assessing one point for his 2012 Maryland conviction for attempting to elude

police, see U.S. Sentencing Guidelines Manual § 4A1.1(c) (2018), and two points because

he committed the instant federal offense while under a criminal justice sentence for that

Maryland conviction, see USSG § 4A1.1(d). Under the Guidelines, a prior sentence is not

counted toward a defendant’s criminal history if it was imposed for conduct that is “part of

the instant offense.” USSG § 4A1.2(a)(1). Conduct is part of the instant offense if it

qualifies as relevant conduct. USSG § 4A1.2 cmt. n.1. Relevant conduct includes all

conduct by the defendant “that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid detection

or responsibility for that offense,” USSG § 1B1.3(a)(1), as well as all conduct by the

defendant “that w[as] part of the same course of conduct or common scheme or plan as the

offense of conviction,” USSG § 1B1.3(a)(2).

       Even accepting counsel’s representations during the sentencing hearing regarding

Bagley’s 2012 attempt to elude offense, Bagley fell far short of demonstrating that any

drug possession incident to that offense was relevant conduct to his federal offense.

Because the Maryland offense otherwise satisfied the requirements of USSG § 4A1.1(c)

and (d), we conclude the district court did not err in assigning criminal history points based

on that offense.

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       Counsel also questions whether the district court failed to adequately consider

Bagley’s mitigating statements in allocution and the difficult conditions of his pretrial

confinement in evaluating his pro se request for a sentence below the parties’ Fed. R. Crim.

P. 11(c)(1)(C) stipulation. To the contrary, the court acknowledged Bagley’s request for a

sentence lower than the stipulated sentence but properly recognized that it could only

impose such a sentence if Bagley’s guilty plea were withdrawn, which could be detrimental

to him. See Fed. R. Crim. P. 11(c)(1)(C), (5); Hughes v. United States, 138 S. Ct. 1765,

1773 (2018). Bagley ultimately confirmed that he believed the 144-month sentence was

appropriate and that he did not wish to withdraw his plea. Further, in accepting the

stipulated sentence, the court expressly credited a mitigating factor that Bagley raised in

allocution, further demonstrating its consideration of his pro se arguments. With respect

to the conditions of Bagley’s confinement, Bagley raised no argument in mitigation on this

basis, and no evidence of record supports Bagley’s assertion that those conditions were

particularly harsh. Thus, we conclude that the district court was not required to give

additional consideration to these factors in sentencing Bagley.

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

found no meritorious issues for appeal. We therefore affirm Bagley’s conviction and

sentence. This court requires that counsel inform Bagley, in writing, of the right to petition

the Supreme Court of the United States for further review. If Bagley 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 Bagley.

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      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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