United States v. Tony Drum , 635 F. App'x 127 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4474
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY LEE DRUM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00232-MOC-1)
Submitted: March 14, 2016 Decided: March 24, 2016
Before KING, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Lee Drum pled guilty to two counts of harboring,
transporting, providing, obtaining, and maintaining a person who
had not attained the age of 18 years, knowing that the person
would be caused to engage in a commercial sex act, in violation
of 18 U.S.C. § 1591(a)(1), (b)(2) (2012), and two counts of
transporting an individual who had not attained the age of 18
years in interstate commerce with the intent that the individual
engage in prostitution, in violation of 18 U.S.C. § 2423(a)
(2012). A presentence report (PSR) calculated Drum’s Guidelines
range under the U.S. Sentencing Guidelines Manual (2014) at 188
to 235 months’ imprisonment. Drum objected to the PSR’s
assignment of enhancements under USSG §§ 2G1.3(b)(2)(B), (4)(A),
and 3A1.1(b)(1). After conferring with Drum, however, his
counsel stated at sentencing that Drum would “abandon” those
objections and that the parties were making a joint
recommendation to the district court for a sentence of 188
months’ imprisonment. The district court sentenced Drum to four
concurrent terms of 188 months’ imprisonment and supervised
release for a term of life.
On appeal, Drum challenges his sentence, arguing that the
waiver of his right to object, or the withdrawal of his
objections, was not knowing and voluntary because the district
court did not inquire whether he personally wished to withdraw
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his objections. He thus asserts that, as a consequence, this
court should vacate his sentence.
We review de novo the validity of a defendant’s waiver of
objections to a PSR, examining the totality of the circumstances
to determine whether the defendant’s waiver was knowing and
voluntary. United States v. Robinson, 744 F.3d 293, 298-99
(4th Cir. 2014). After review of the record and the parties’
briefs, we conclude that, even if Drum did not validly waive his
challenge to the application of the Guidelines enhancements, he
fails to establish any plain error warranting vacatur of his
sentence. See United States v. Hargrove, 625 F.3d 170, 183-84
(4th Cir. 2010) (holding that, where specific allegation of
sentencing error is not made below, review on appeal is for
plain error); see also Henderson v. United States, 133 S. Ct.
1121, 1126-27, 1130-31 (2013) (setting forth elements of plain
error standard). Drum does not argue that the district court
erred in applying the enhancements under USSG §§ 2G1.3(b)(2)(B),
(4)(A), and 3A1.1(b)(1). He further has not asserted that any
error in the application of those enhancements affected his
substantial rights. See United States v. Hernandez, 603 F.3d
267, 273 (4th Cir. 2010) (“To demonstrate that a sentencing
error affected his substantial rights, Hernandez would have to
show that, absent the error, a different sentence might have
been imposed.”). He also presents no argument challenging the
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imposition by the district court of the lifetime term of
supervised release.
Because Drum fails to establish plain error by the district
court, the predicate to his claim on appeal that his sentence
should be vacated is not established. We therefore reject the
claim and affirm the district court’s judgment. 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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