                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4348


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JAMAINE DEVON HAYES,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:16-cr-00409-TDS-1)


Submitted: December 18, 2017                                      Decided: January 11, 2018


Before SHEDD, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Ira Knight, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. John Mcrae Alsup, 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Unpublished opinions are not binding precedent in this circuit.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:

       Jamaine Devon Hayes pled guilty to possession of firearms by a convicted felon,

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The district court calculated

Hayes’ Guidelines range under the U.S. Sentencing Guidelines Manual (2016) at 108 to

120 months’ imprisonment and sentenced him to 117 months’ imprisonment.

       On appeal, 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 abused its discretion in imposing sentence because it did not find that the

condition of a firearm Hayes possessed warranted a downward variance. Hayes was

informed of his right to file a pro se supplemental brief, but he has not done so.

The Government declined to file a brief. We affirm.

       We review Hayes’ sentence for reasonableness under a deferential abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 41, 51 (2007); United States v.

Lymas, 781 F.3d 106, 111-12 (4th Cir. 2015). In doing so, we examine the sentence for

procedural error, which includes “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Lymas, 781 F.3d at 111-12

(quoting Gall, 552 U.S. at 51). We also review the substantive reasonableness of the

sentence, “tak[ing] into account the totality of the circumstances.” Gall, 552 U.S. at 51.

Any sentence within or below a properly calculated Guidelines range is presumptively

substantively reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

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Such a presumption can only be rebutted by a showing that the sentence is unreasonable

when measured against the § 3553(a) factors. Id.

       We conclude after review of the record that the district court did not abuse its

discretion as Hayes suggests. The firearm’s condition was noted in the presentence

report’s description of Hayes’ offense conduct, and Hayes invoked the condition of the

firearm in his argument at sentencing for a sentence of 108 months or less. The district

court adopted the presentence report in its entirety, heard Hayes’ argument, and

concluded that a 117-month sentence was warranted in light of the nature of Hayes’

offense conduct, his history and characteristics, and the need for the sentence to provide

adequate deterrence, protect the public, and provide just punishment, see 18 U.S.C.

§ 3553(a)(1), (2)(A)-(C) (2012). In assigning weight to concerns stemming from these

factors and declining to impose a downward variance, the district court did not abuse its

discretion. See United States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (stating

it was within district court’s discretion to accord more weight to a host of aggravating

factors in defendant’s case and decide that the sentence imposed would serve the § 3553

factors on the whole).

       Finally, in accordance with Anders, we have reviewed the remainder of the record

in this case and have found no meritorious issues for appeal. We therefore affirm the

criminal judgment. This court requires that counsel inform Hayes, in writing, of the right

to petition the Supreme Court of the United States for further review. If Hayes requests

that a petition be filed, but counsel believes that such a petition would be frivolous, then



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counsel may move in this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Hayes.

      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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