United States v. Hosea Diamond ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4655
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOSEA DIAMOND, a/k/a Jose,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-01109-JFA-3)
Submitted: January 31, 2012 Decided: February 9, 2012
Before KING, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edye U. Moran, MORAN LAW OFFICES, Columbia, South Carolina, for
Appellant. Robert Claude Jendron, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hosea Diamond pleaded guilty to conspiracy to possess
with intent to distribute and distribute cocaine and cocaine
base, in violation of 21 U.S.C. § 846 (2006). The district
court sentenced Diamond to forty-one months of imprisonment and
he now appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
Diamond’s guilty plea was knowing and voluntary and whether the
district court erred in adopting the revised presentence report.
Diamond filed a pro se supplemental brief raising additional
issues. * Finding no error, we affirm.
Counsel first questions whether Diamond’s guilty plea
was knowing and voluntary where the district court set a
deadline for the filing of a plea agreement in order to receive
the benefit of acceptance of responsibility under the advisory
Sentencing Guidelines. The purpose of the Fed. R. Crim. P. 11
colloquy is to ensure that the plea of guilt is entered into
knowingly and voluntarily. See United States v. Vonn, 535 U.S.
55, 58 (2002). Accordingly, prior to accepting a guilty plea, a
trial court, through colloquy with the defendant, must inform
the defendant of, and determine that he understands, the nature
*
We have considered the issues raised in Diamond’s pro se
brief and conclude they lack merit.
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of the charges to which the plea is offered, any mandatory
minimum penalty, the maximum possible penalty he faces, and the
various rights he is relinquishing by pleading guilty. Fed. R.
Crim. P. 11(b). The court also must determine whether there is
a factual basis for the plea. Id.; United States v. DeFusco,
949 F.2d 114, 120 (4th Cir. 1991). We have thoroughly reviewed
the record and conclude that the district court fully complied
with the requirements of Rule 11 and that Diamond’s guilty plea
was entered into knowingly and voluntarily.
Counsel next questions whether the district court
erred in adopting the undisputed revised presentence report. As
Diamond failed to object to the presentence report in the
district court, we review this issue for plain error. See Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). To meet this standard, Diamond must demonstrate that
there was error, that was plain, and that affected his
substantial rights. Id. Moreover, even if Diamond demonstrates
plain error occurred, we will not exercise discretion to correct
the error “unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(internal quotation marks and citation omitted).
Under Fed. R. Crim. P. 32(i)(3), the district court
“may accept any undisputed portion of the presentence report as
a finding of fact.” Here, Diamond did not file any objections
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to the revised presentence report and averred at the sentencing
hearing that he had no objections to the report. Accordingly,
the district court did not err in accepting the findings in the
revised presentence report as fact.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Diamond, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Diamond 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 Diamond. 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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