United States v. Lattaker ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4631
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN LYNN LATTAKER, a/k/a Edward Miller,
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. (3:07-cr-00094-RJC-1)
Submitted: December 23, 2008 Decided: January 14, 2009
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., LAW OFFICES OF MARK FOSTER, PC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Lynn Lattaker pled guilty pursuant to a plea
agreement to two counts of robbery affecting interstate
commerce, in violation of 18 U.S.C. § 1951 (2006), one count of
brandishing a firearm during a crime of violence, in violation
of 18 U.S.C. § 924(c) (2006), and one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(2006). As part of the plea agreement, Lattaker waived his
right to challenge his conviction and sentence on direct appeal,
except for claims of prosecutorial misconduct or ineffective
assistance of counsel. The district court sentenced Lattaker to
360 months’ imprisonment. Lattaker’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal. Lattaker filed
a pro se supplemental brief raising several issues. The
Government does not seek to enforce the plea agreement’s appeal
waiver. ∗ Finding no error, we affirm.
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Because the Government has not sought to enforce
Lattaker’s appellate waiver, we need not consider whether the
waiver is dispositive of this appeal. See United States v.
Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000) (declining to
consider an appeal waiver that arguably barred the appeal on one
issue because the Government had expressly elected not to argue
waiver with regard to that issue); cf. United States v. Blick,
408 F.3d 162, 168-69 (4th Cir. 2005) (enforcing a plea
agreement’s appeal waiver where the Government sought
enforcement, the issues raised fell within the waiver’s scope,
(Continued)
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. Our review of the transcript of the plea hearing leads
us to conclude that the district court substantially complied
with the mandates of Fed. R. Crim. P. 11 in accepting Lattaker’s
guilty plea and that the court’s omissions did not affect
Lattaker’s substantial rights. Critically, the transcript
reveals that the district court ensured the plea was supported
by an independent factual basis and that Lattaker entered the
plea knowingly and voluntarily with an understanding of the
consequences. See United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991).
Turning to Lattaker’s sentence, we review a criminal
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 594-97 (2007);
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). We must
first determine whether the district court committed any
“significant procedural error.” Gall, 128 S. Ct. at 597. We
then consider the substantive reasonableness of the sentence,
and may apply a presumption of reasonableness to a sentence
within the Guidelines range. Go, 517 F.3d at 218. We find that
and no claim was present that the Government breached its
obligations under the plea agreement).
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the district court’s imposition of a 360-month sentence, a
sentence within the properly calculated Guidelines range, was
reasonable. We find further that none of the issues in
Lattaker’s pro se supplemental brief raise meritorious issues
for appeal.
We therefore affirm the district court’s judgment.
This court requires counsel to 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 that such a petition would be
frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy of
the motion was served on the client. 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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