United States v. Norod McCullough , 706 F. App'x 145 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NOROD ARCANE MCCULLOUGH,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, District Judge. (4:16-cr-00876-RBH-1)
Submitted: November 30, 2017 Decided: December 20, 2017
Before GREGORY, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norod Arcane McCullough pled guilty to possession with intent to distribute heroin,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2012),
and was sentenced to 72 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 McCullough’s guilty plea is valid and whether
McCullough’s sentence is procedurally and substantively reasonable. Although advised of
his right to file a supplemental pro se brief, McCullough has not done so. The Government
declined to file a response brief. We affirm.
Counsel first questions the validity of McCullough’s guilty plea. Before accepting
a guilty plea, the district court must conduct a colloquy in which it informs the defendant
of, and determines that he understands, the nature of the charges to which he is pleading
guilty, any mandatory minimum penalty, the maximum penalty he faces, and the rights he
is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco,
949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the defendant’s plea is
voluntary in that it did not result from force, threats, or promises outside the plea
agreement, and is supported by an independent factual basis. Fed. R. Crim. P. 11(b)(2),
(3). Because McCullough did not move to withdraw his guilty plea or otherwise preserve
any error in the plea proceedings, we review the adequacy of the plea colloquy for plain
error. United States v. Williams, 811 F.3d 621, 622 (4th Cir. 2016). Our review of the
transcript reveals that the district court substantially complied with the requirements of
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Fed. R. Crim. P. 11, that a factual basis supported the plea, and that McCullough’s plea
was knowingly and voluntarily entered. Accordingly, McCullough’s guilty plea is valid.
Next, counsel questions whether McCullough’s sentence is reasonable. “We review
the reasonableness of a sentence under 18 U.S.C. § 3553(a) [(2012)] using an abuse-of-
discretion standard, regardless of whether the sentence is inside, just outside, or
significantly outside the Guidelines range.” United States v. Lymas, 781 F.3d 106, 111
(4th Cir. 2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007) (alteration and internal
quotation marks omitted)). This review requires consideration of both the procedural and
substantive reasonableness of the sentence. Id.
In determining procedural reasonableness, we consider whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
sentencing factors, and sufficiently explained the selected sentence. Id. at 111-12. Only
after determining that the sentence is procedurally reasonable do we consider the
substantive reasonableness of the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. “Any sentence that is within or below a properly
calculated Guidelines range is presumptively [substantively] reasonable. Such a
presumption can only be rebutted 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) (citation omitted).
Our review of the sentencing transcript reveals no significant procedural errors. The
district court accurately calculated McCullough’s advisory Guidelines range, gave the
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parties the opportunity to present argument and McCullough the opportunity to allocute,
considered the § 3553(a) factors, and adequately explained its reasons for imposing the
sentence. We further conclude that McCullough has not met his burden of rebutting the
presumption that his below-Guidelines-range sentence is substantively reasonable.
In accordance with Anders, we also have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm the criminal judgment.
This court requires that counsel inform McCullough, in writing, of the right to petition the
Supreme Court of the United States for further review. If McCullough 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 McCullough.
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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