                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4512


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CALVIN JERMEL STEWART, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00142-HFF-1)


Submitted:   February 24, 2010              Decided:   March 19, 2010


Before KING, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.       Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Calvin Jermel Stewart, Jr. pled guilty, without a plea

agreement,    to   possession      of     a    firearm       and    ammunition     after

having been convicted of a crime punishable by more than one

year of imprisonment, in violation of 18 U.S.C. § 922(g) (2006).

In   the     presentence      report      (PSR),          the      probation     officer

determined that Stewart qualified for sentencing as an armed

career criminal pursuant to 18 U.S.C. § 924(e) (2006) and U.S.

Sentencing Guidelines Manual (USSG) § 4B1.4 (2005).                            Stewart’s

status as an armed career criminal resulted in an offense level

of thirty-three, and a criminal history category of IV, which

yielded a sentencing range of 188 to 235 months of imprisonment.

Stewart did not object to the PSR.                  The district court sentenced

Stewart to 220 months of imprisonment.

           Counsel failed to file a notice of appeal.                            Stewart

filed a 28 U.S.C.A. § 2255 (West Supp. 2009) motion, asserting

that he is actually innocent, that counsel was ineffective in

failing to file an appeal, that criminal history points were

incorrectly    applied     to     place       him    in     armed    career     criminal

status, and that his conviction for pointing a firearm does not

constitute    a    crime     of   violence          after    the     Supreme     Court’s

decision in Begay v. United States, 553 U.S. 137, 128 S. Ct.

1581,   1584-86    (2008).        The   district          court    granted    relief   in



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part, vacated its original judgment, and immediately reentered

judgment to allow Stewart a belated direct appeal.

             On appeal, counsel 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      erred    in    sentencing          Stewart.           In    his   pro    se

supplemental brief, Stewart argues that the Anders brief was

submitted in violation of the Sixth Amendment and requests that

his appeal be remanded to the district court so that the court

may consider the merits of the claims asserted in his § 2255

motion.    The Government declined to file a brief.                             We affirm.

             This court reviews a sentence for reasonableness under

an abuse of discretion standard.                       Gall v. United States, 552

U.S.   38,     51      (2007).          This           review     requires           appellate

consideration         of     both      the        procedural              and      substantive

reasonableness of a sentence.                    Id.     After determining whether

the district court properly calculated the defendant’s advisory

Guidelines     range,      this     court    must       then    consider          whether     the

district     court     considered       the       18     U.S.C.       §     3553(a)     (2006)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                             Id.      “Regardless

of   whether    the    district       court       imposes       an    above,        below,     or

within-Guidelines          sentence,    it       must     place      on     the     record     an

‘individualized assessment’ based on the particular facts of the

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case before it.”          United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009).

            In this case, counsel does not assert any specific

error,     procedural     or    substantive,           in    the    district       court’s

sentencing determination.             Our review of the record leads us to

conclude    that    the   district      court       did     not    err    in   sentencing

Stewart.     In his pro se brief, Stewart argues that the three

convictions used to qualify him for an enhanced sentence as an

armed    career    criminal     are    not       violent    felonies       under    Begay.

This argument is meritless.              In Begay, the Supreme Court held

that the offense of driving while intoxicated under New Mexico

law was not a violent felony under the Armed Career Criminal

Act’s “otherwise” clause because it was not sufficiently similar

to crimes specifically mentioned in that clause.                          Begay, 128 S.

Ct. at 1588.       The Court stated that “[i]n our view, DUI differs

from the example crimes — burglary, arson, extortion, and crimes

involving the use of explosives — in at least one pertinent, and

important, respect.            The listed crimes all typically involve

purposeful, ‘violent,’ and ‘aggressive’ conduct.”                          Id. at 1586.

Stewart’s prior convictions for pointing a firearm at another

person,    lynching,      and    assault         and    battery      of    a   high   and

aggravated    nature      likewise      involve        “purposeful,       violent,     and

aggressive conduct.”            The district court correctly determined

that     Stewart   qualified      for     sentencing         as     an    armed     career

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criminal.     We also conclude that the district court provided a

sufficiently    individualized     explanation     for    its   sentence   that

demonstrated        its   consideration     of   the     relevant    § 3553(a)

factors, as required by Carter.

            This court reviews the substantive reasonableness of

the     sentence,     “taking   into   account    the    ‘totality    of   the

circumstances, including the extent of any variance from the

Guidelines range.’”        United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597).                  This court

presumes that a sentence imposed within the properly calculated

guidelines range is reasonable.            Rita v. United States, 551 U.S.

338, 347 (2007); United States v. Smith, 566 F.3d 410, 414 (4th

Cir. 2009).     Stewart has presented no information to demonstrate

that the totality of the circumstances would support a sentence

below the Guidelines range, and our review of the record reveals

none.

            In accordance with Anders, we have reviewed the record

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

We have considered the remaining arguments asserted in Stewart’s

supplemental brief, including those claims raised in his § 2255

motion in the district court, and find them to be without merit.

We therefore affirm Stewart’s conviction and sentence.                     This

court requires that counsel inform Stewart, in writing, of the

right to petition the Supreme Court of the United States for

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further review.        If Stewart 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 Stewart.

            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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