United States v. Dwayne Anderson ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4666
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE JEROME ANDERSON, a/k/a Life,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:14-cr-00604-JFA-26)
Submitted: October 30, 2017 Decided: November 7, 2017
Before MOTZ, TRAXLER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville, South
Carolina, for Appellant. John David Rowell, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Jerome Anderson pled guilty to conspiracy to possess with intent to
distribute and to distribute crack and powder cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), 846 (2012), and the district court sentenced him to 151 months’
incarceration, the bottom of the advisory Sentencing Guidelines range established by the
district court. Anderson’s attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), concluding there are no meritorious grounds for appeal but questioning
whether the district court complied with Fed. R. Crim. P. 11 when accepting Anderson’s
plea, whether the district court properly classified Anderson as a career offender, and
whether Anderson’s sentence is reasonable. Anderson has filed a pro se brief raising
several issues. 1 We affirm.
Before accepting a guilty plea, the district court must conduct a plea colloquy in
which it informs the defendant of, and determines that he comprehends, the nature of the
charge to which he is pleading guilty, the maximum possible penalty he faces, any
mandatory minimum penalty, 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 plea is voluntary and is supported by an independent
factual basis. Fed. R. Crim. P. 11(b)(2), (3). Anderson did not move to withdraw his
guilty plea; thus, we review the adequacy of the Rule 11 hearing for plain error. United
1
After thoroughly reviewing the record, we conclude that the issues Anderson
raises in his pro se brief are without merit.
2
States v. Sanya, 774 F.3d 812, 815-16 (4th Cir. 2014). We conclude that the district court
substantially complied with Rule 11 and that any minor omissions in the Rule 11
colloquy did not affect Anderson’s substantial rights. See United States v. Davila, 133
S. Ct. 2139, 2147 (2013).
Next, we review for plain error whether Anderson’s South Carolina convictions
for distribution of crack cocaine, pointing and presenting a firearm, and assault with
intent to kill were proper career offender predicate convictions. United States v. Riley,
856 F.3d 326, 328 (4th Cir. 2017) (providing standard of review), cert. denied, ___ S. Ct.
___, No. 17-5559, 2017 WL 3480672 (U.S. Oct. 2, 2017). We review de novo the
classification of Anderson’s conviction for criminal domestic violence of a high and
aggravated nature (CDVHAN) as a career offender predicate conviction. Id. at 327-28.
To be classified as a career offender, a defendant must, in relevant part, “ha[ve] at least
two prior felony convictions of either a crime of violence or a controlled substance
offense.” Id. at 328; see U.S. Sentencing Guidelines Manual § 4B1.2 (2015) (defining
crime of violence and controlled substance offense).
Anderson was convicted of distribution of crack cocaine, a controlled substance
offense, for which he received a sentence of three years’ imprisonment. Anderson also
was convicted of pointing and presenting a firearm, which we have held is a crime of
violence. United States v. King, 673 F.3d 274, 280 (4th Cir. 2012). We therefore
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conclude that the district court properly classified Anderson as a career offender based on
those offenses. 2
Finally, we review Anderson’s sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under this standard, we review
a sentence for both procedural and substantive reasonableness. Id. at 51. 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) (2012) factors, and sufficiently
explained the selected sentence. Id. at 49-51. In this case, the district court properly
calculated an advisory Guidelines range of 151 to 188 months’ incarceration. The court
then allowed Anderson to allocute and both parties to present argument. The court
imposed a within-Guidelines sentence of 151 months’ incarceration, explaining that it
considered the § 3553(a) factors, Anderson’s criminal record, the need to promote respect
for the law and deterrence, and the seriousness of the offense. We therefore conclude
that Anderson’s sentence is procedurally reasonable.
If a sentence is free of “significant procedural error,” we review it for substantive
reasonableness, “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 reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
2
In light of this conclusion, we need not determine whether either assault with
intent to kill or CDVHAN is a crime of violence.
4
We conclude that no evidence in the record rebuts the presumption of reasonableness
accorded Anderson’s within-Guidelines-range sentence. See id.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. Accordingly, we affirm the district
court’s judgment. This court requires that counsel inform Anderson, in writing, of the
right to petition the Supreme Court of the United States for further review. If Anderson
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 Anderson. 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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