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    The United States Court of Appeals for the Fourth Circuit partially dismissed and partially affirmed the district court's amended judgment resentencing Anthony Pridgen. The district court had resentenced Pridgen to 240 months in prison, the statutory mandatory minimum, after granting his 28 U.S.C. § 2255 motion based on ineffective assistance of his appellate counsel. The Court of Appeals found that the district court properly considered the 18 U.S.C. § 3553(a) factors and had no discretion to sentence below the statutory minimum. It also determined that the district court did not abuse its discretion in its handling of Pridgen's § 2255 motion.

    Original Description:

    Filed: 2010-05-06 Precedential Status: Non-Precedential Docket: 08-4944

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    The United States Court of Appeals for the Fourth Circuit partially dismissed and partially affirmed the district court's amended judgment resentencing Anthony Pridgen. The district court had resentenced Pridgen to 240 months in prison, the statutory mandatory minimum, after granting his 28 U.S.C. § 2255 motion based on ineffective assistance of his appellate counsel. The Court of Appeals found that the district court properly considered the 18 U.S.C. § 3553(a) factors and had no discretion to sentence below the statutory minimum. It also determined that the district court did not abuse its discretion in its handling of Pridgen's § 2255 motion.

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    United States v. Pridgen, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit partially dismissed and partially affirmed the district court's amended judgment resentencing Anthony Pridgen. The district court had resentenced Pridgen to 240 months in prison, the statutory mandatory minimum, after granting his 28 U.S.C. § 2255 motion based on ineffective assistance of his appellate counsel. The Court of Appeals found that the district court properly considered the 18 U.S.C. § 3553(a) factors and had no discretion to sentence below the statutory minimum. It also determined that the district court did not abuse its discretion in its handling of Pridgen's § 2255 motion.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 08-4944

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    ANTHONY BYRON PRIDGEN, a/k/a Big Ant,
    Defendant Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Florence.
    C. Weston Houck, Senior District
    Judge. (4:01-cr-00627-CWH-6; 4:06-cv-00166-CWH)

    Submitted:

    March 10, 2010

    Decided:

    May 6, 2010

    Before KING, GREGORY, and DUNCAN, Circuit Judges.

    Dismissed in part; affirmed in part by unpublished per curiam


    opinion.

    D. Craig Brown, Florence, South Carolina, for Appellant. Marvin


    Jennings Caughman, Assistant United States Attorney, Columbia,
    South Carolina, Rose Mary Sheppard Parham, Assistant United
    States Attorney, Florence, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Anthony

    Byron

    Pridgen

    appeals

    the

    district

    courts

    amended judgment reducing his prison sentence from 292 months to


    240

    months

    after

    ordering

    that

    he

    U.S.C. 2255 (2006) proceeding.

    be

    resentenced

    in

    his

    28

    Pridgens attorney has filed a

    brief pursuant to Anders v. California, 386 U.S. 738 (1967),


    asserting, in his opinion, there are no meritorious grounds for
    appeal

    but

    raising

    the

    issue

    of

    whether

    the

    district

    court

    complied with 18 U.S.C. 3553(a) (2006) when it resentenced


    Pridgen to 240 months.

    Pridgen has filed a pro se supplemental

    brief raising the issue of whether the district court erred or


    abused its discretion when it refused to entertain his motion
    under 2255 and instead granted him a resentencing under United
    States v. Booker, 543 U.S. 220 (2005).

    We dismiss this appeal

    in part, and we affirm the district courts judgment.


    We

    review

    Pridgens

    abuse-of-discretion standard.
    38, 51 (2007).
    ensure

    that

    Cir.

    under

    deferential

    Gall v. United States, 552 U.S.

    The first step in this review requires us to


    the

    procedural error.
    (4th

    sentence

    district

    court

    committed

    no

    significant

    United States v. Carter, 564 F.3d 325, 328

    2009).

    We

    then

    consider

    the

    substantive

    reasonableness of the sentence, taking into account the totality


    of the circumstances.

    Gall, 552 U.S. at 51.

    At Pridgens original sentencing, the district court


    sentenced him at the low end of his guideline range to 292
    months in prison.
    his

    sentence

    months.

    to

    At resentencing, the district court reduced


    the

    statutory

    mandatory

    minimum

    term

    of

    240

    In explaining its sentence, the district court reviewed

    the 3553(a) factors and noted that the court considered the
    guideline range as advisory and looked to the 3553(a) factors
    in

    imposing

    the

    sentence.

    The

    court

    further

    explained

    that

    Booker did not remove the statutory mandatory minimum, and that
    the court had no discretion to sentence him below that minimum.
    Pridgens attorney contends that if the district court
    had given greater deference to the 3553(a) factors, Pridgen
    would have received a lower sentence.
    without merit.

    We find this argument

    The district court had no discretion to sentence

    Pridgen below the statutory mandatory minimum, see United States


    v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), and his sentence
    to the statutory mandatory minimum is per se reasonable.

    See

    United States v. Farrior, 535 F.3d 210, 224 (4th Cir.), cert.
    denied, 129 S. Ct. 743 (2008).
    In his pro se supplemental brief, Pridgen questions
    whether the district court erred or abused its discretion when
    it refused to entertain his 2255 motion and instead granted
    him

    Booker

    resentencing.

    The

    district

    court

    ordered

    the

    resentencing based on Pridgens allegation and the Governments


    3

    concession that his appellate attorney may have been ineffective


    in

    not

    filing

    timely

    prejudiced as a result.
    remaining

    claims

    petition

    for

    certiorari,

    and

    he

    was

    The district court dismissed Pridgens

    without

    prejudice

    to

    him

    raising

    them

    in

    another 2255 motion after his sentence was final following


    direct review on his resentencing.
    To the extent that Pridgen challenges the propriety of
    the district courts 2255 relief on his ineffective assistance
    claim pertaining to the untimely petition for certiorari, we
    find no abuse of discretion by the district court.

    See United

    States v. Hadden, 475 F.3d 652, 666 (4th Cir. 2007).

    To the

    extent that he seeks to appeal the district courts decision to


    dismiss his remaining claims without prejudice, we have reviewed
    the record and conclude that he has failed to make a substantial
    showing of the denial of a constitutional right pursuant to 28
    U.S.C. 2253(c) (2006).

    Accordingly, we deny a certificate of

    appealability and dismiss this part of Pridgens appeal.


    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    appeal.

    We therefore dismiss this appeal in part and affirm the

    district courts judgment.

    This court requires that counsel

    inform his client, in writing, of his right to petition the


    Supreme Court of the United States for further review.

    If the

    client requests that a petition be filed, but counsel believes


    4

    that such a petition would be frivolous, then counsel may move


    in

    this

    court

    for

    leave

    to

    withdraw

    from

    representation.

    Counsels motion must state that a copy thereof was served on


    the client.
    We dispense with oral argument because the facts and
    legal
    before

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in
    aid

    the
    the

    materials
    decisional

    process.
    DISMISSED IN PART;
    AFFIRMED IN PART

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