                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4949



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBIN LEACH,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00302)


Submitted: June 13, 2007                       Decided: July 12, 2007


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Charles Jones, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          On August 23, 2005, Robin Leach was charged in a four

count indictment with two counts of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2000)

(Counts One and Four); possession with intent to distribute cocaine

and aiding and abetting the same, in violation of 21 U.S.C.

§§ 841(a)(1) (1999) and 841(b)(1)(C) (1999) and 18 U.S.C. § 2

(2000) (Count Two); and unlawfully using and carrying a firearm and

possession    of    a   firearm   during    and   in   relation   to   a   drug

trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000

and Supp. 2006) (Count Three).         Leach eventually entered into a

plea agreement with the Government whereby he agreed to plead

guilty to Counts Two through Four.

          On April 27, 2005, the Charlotte Mecklenburg Police

Department responded to a call of shots fired during a domestic

disturbance.       Upon arriving, officers encountered Robin Leach and

Tomesha Scott, Leach’s girlfriend.          Authorities learned that Leach

and Scott had been involved in a physical altercation and that

after the fight, Scott took Leach’s car. Scott eventually returned

and drove Leach’s car into a tree.            In retaliation, Leach then

fired two shots into Scott’s unoccupied car and used a baseball bat

to smash the front windows of Scott’s car.             The police eventually

located the gun used by Leach in a duffle bag on the roof of the

home.   Inside the bag was the gun with Leach’s blood on it, a


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magazine clip, approximately twenty-four grams of cocaine, thirty-

four grams of marijuana, a crack pipe, a Brillo pad, rolling

papers, and a set of scales.

           At Leach’s Rule 11 hearing, the Government clarified that

Leach discharged the gun in connection with a domestic violence

situation, and not in furtherance of a drug trafficking offense.

Leach, therefore, was subject only to a five year mandatory minimum

sentence under § 924(c) for possession of the firearm.

           At Leach’s sentencing on August 30, 2006, the Government

again stated that an enhancement for discharge of a firearm did not

apply but cited the discharge in discussing the seriousness of the

offense and as a basis for sentencing Leach near the high end of

his guidelines range with respect to Counts Two and Four.             The

court then sentenced Leach to thirty-six months’ imprisonment,

concurrent,   on   Counts   Two   and   Four,   and   to   sixty   months’

imprisonment, consecutive, on Count Three.       Leach timely appealed

and filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967).1   For the reasons that follow, we affirm the judgment of

the district court.

           On appeal, Leach raises one alleged error. In his brief,

Leach first states that the district court “committed plain error

in sentencing him to a consecutive sixty (60) month sentence for



     1
      Leach was informed of his right to file a pro se supplemental
brief. Leach has not done so.

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gun possession in a domestic violence situation.”          Leach then goes

on to point out that the Government argued for a sentence near the

high end of his guidelines range on Count One, “and the 60 month

consecutive   sentence   because    of     the   fact   that   the   gun   was

discharged into a car in a domestic violence situation and that

there were other people around.”           Leach then appears to contend

that the sixty month sentence was improper because “there was no

one in and or around the car left parked in his yard that he shot

into.”

          Leach failed to object to the imposition of the sixty

month sentence on Count Three in the court below. Accordingly, his

claim is subject to plain error review.           Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 732 (1993).              To establish

plain error, Leach must show that:          (1) there was error; (2) the

error was plain; and (3) the error affected his substantial rights.

Id.   Even if Leach makes this showing, “Rule 52(b) leaves the

decision to correct the forfeited error within the sound discretion

of the court of appeals, and the court should not exercise that

discretion unless the error seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.”                  Id.

(quoting United States v. Young, 470 U.S. 1, 15 (1985) (internal

quotations omitted)).    Here, Leach fails to establish error under

Olano.




                                   - 4 -
            To the extent that Leach claims he improperly received a

sixty month sentence on Count Three for possessing a gun during a

domestic violence situation, Leach misconstrues or misapprehends

the basis for his sentence.         Leach was sentenced under § 924(c),

not   for   discharging   the     firearm   during   a    domestic     violence

situation,    but   for   the   later   possession       of   the    firearm   in

connection with a drug offense.             As mentioned previously, the

police located the gun used by Leach in a duffle bag with twenty-

four grams of cocaine, thirty-four grams of marijuana, a set of

scales, rolling paper, and a crack pipe. Leach admitted to placing

the gun in the bag where the drugs were found.                 Therefore, the

district court did not commit error in sentencing Leach to a sixty

month sentence on Count Three.          See United States v. Lomax, 293

F.3d 701, 705 (4th Cir. 2002).

            Despite Leach’s apparent suggestion to the contrary, the

discharge of the gun and the fact that “no one was in and or around

the car left parked in his yard that he shot into” had no bearing

on his sentence for the § 924(c) violation in Count Three.              Rather,

as the prosecutor twice pointed out, Leach was being sentenced for

mere possession of the firearm and not discharge of the weapon, as

the discharge, unlike the later possession, occurred during the

domestic    situation.      The    Government    merely       used   the   facts

surrounding the discharge to argue for a sentence near the high end

of Leach’s guidelines range on Counts Two and Four and not to


                                    - 5 -
affect Leach’s sentence on Count Three.         Accordingly, Leach has

failed to establish error in being sentenced to the five year

minimum for Count Three.

            In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.           We

therefore   affirm   the   district   court’s   judgment.   This   court

requires that counsel inform Leach, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Leach 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 Leach.

            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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