United States v. Willie Fleming , 675 F. App'x 311 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4617
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE HERNANDEZ FLEMING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:14-cr-00400-RDB-1)
Submitted: January 25, 2017 Decided: February 1, 2017
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant. John
Francis Purcell, Jr., Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Hernandez Fleming pled guilty, pursuant to a written
plea agreement, to conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) (2012). The district court
sentenced Fleming within his advisory Guidelines range to 137
months’ imprisonment. In accordance with Anders v. California,
386 U.S. 738 (1967), Fleming’s counsel has filed a brief
certifying there are no meritorious grounds for appeal but
questioning whether the district court complied with Fed. R.
Crim. P. 11 in accepting Fleming’s guilty plea and whether
Fleming’s sentence is reasonable. * We affirm the district
court’s judgment.
Prior to accepting a guilty plea, a court must conduct a
plea colloquy in which it informs the defendant of, and
determines that the defendant understands, the nature of the
charge to which he is pleading guilty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
*Fleming’s attorney also questions the validity of the
appeal waiver in the plea agreement. Because the Government
does not seek to enforce the waiver, and we will not enforce the
waiver sua sponte, we have reviewed the case in accordance with
Anders. United States v. Poindexter, 492 F.3d 263, 271 (4th
Cir. 2007); see United States v. Jones, 667 F.3d 477, 486 (4th
Cir. 2012).
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DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court
also must ensure that the defendant’s plea is voluntary,
supported by a sufficient factual basis, and not the result of
force, threats, or promises not contained in the plea agreement.
Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.
Because Fleming did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error. United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail
on a claim of plain error, [Fleming] must demonstrate not only
that the district court plainly erred, but also that this error
affected his substantial rights.” Id. at 816. In the guilty
plea context, a defendant “must demonstrate a reasonable
probability that, but for the error, he would not have pleaded
guilty.” Id. (internal quotation marks omitted). We conclude
that Fleming has not established error, plain or otherwise, in
his Rule 11 hearing. The district court correctly found
Fleming’s plea knowing and voluntary, and supported by an
independent factual basis.
As to Fleming’s sentence, we review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. In
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determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Sentencing 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. Gall, 552 U.S. at 49-51. If there are no
procedural errors, we then consider the substantive
reasonableness of a sentence, evaluating “the totality of the
circumstances.” Id. at 51. A sentence is presumptively
reasonable if it is within the Guidelines range, and this
“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).
In this case, the record establishes that Fleming’s
sentence is procedurally and substantively reasonable. In
accordance with Anders, we have reviewed the entire record in
this case and Fleming’s pro se supplemental briefs and have
found no meritorious grounds for appeal. We therefore grant
Fleming’s motion to file a supplemental brief and affirm the
district court’s judgment. This court requires that counsel
inform Fleming, in writing, of the right to petition the Supreme
Court of the United States for further review. If Fleming
requests that a petition be filed, but counsel believes that
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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 Fleming.
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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