United States v. Marshall ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT JUNIOR MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00325-JAB-1)
Submitted: December 3, 2009 Decided: January 4, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Junior Marshall pled guilty to unlawfully
attempting to possess with intent to distribute three kilograms
of a mixture or substance containing a detectable amount of
cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846 (2006). The district court sentenced Marshall to
140 months’ imprisonment, * and Marshall timely appealed. Counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), in which counsel determined that there are no
meritorious grounds for appeal. Marshall did not file a pro se
supplemental brief, despite receiving notice of his right to do
so. The Government elected not to file an answering brief.
Finding no infirmity in either Marshall’s conviction or
sentence, we affirm.
The purpose of the Rule 11 colloquy is to ensure that
the defendant enters the plea of guilt knowingly and
voluntarily. See United States v. Vonn, 535 U.S. 55, 58 (2002).
Prior to accepting a guilty plea, a trial court must inform the
defendant of, and determine that he understands, the nature of
the charges to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty he faces, and the various
*
This sentence incorporated a downward departure for
substantial assistance pursuant to U.S. Sentencing Guidelines
Manual § 5K1.1 (2007).
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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).
There is a strong presumption that a defendant’s
guilty plea is binding and voluntary if the Rule 11 hearing was
adequate. United States v. Puckett, 61 F.3d 1092, 1099 (4th
Cir. 1995). Additionally, where, as here, the defendant did not
move to withdraw his guilty plea in the district court, we
review for plain error the adequacy of the guilty plea
proceeding under Rule 11. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Marshall]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Marshall satisfies these requirements, “correction of the error
remains within [the Court’s] discretion, which [the Court]
should not exercise . . . unless the error seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation
omitted).
Marshall has not presented any evidence or argument to
demonstrate plain error. Indeed, the record reveals that the
district court fully complied with the Fed. R. Crim. P. 11
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requirements during the plea colloquy, ensuring that Marshall’s
plea was knowing and voluntary, that he understood the rights he
was giving up by pleading guilty and the sentence he faced, and
that he committed the offenses to which he was pleading guilty.
Marshall also attested during the hearing that he fully
understood the ramifications of his guilty plea, and that no one
made promises to him outside those made by the Government in his
plea agreement. We accordingly conclude the district court did
not commit any errors during the Rule 11 hearing, and Marshall’s
plea was knowing, voluntary, and supported by a sufficient
factual basis.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir. 2009). In addition, this court presumes a
sentence within a properly determined advisory guidelines range
is substantively reasonable. See Rita v. United States, 551
U.S. 338, 341 (2007); United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
We conclude that Marshall’s sentence is both
procedurally and substantively reasonable. The district court
properly calculated Marshall’s Guidelines range, treated the
Guidelines as advisory, and considered the applicable 18 U.S.C.
§ 3553(a) (2006) factors. See United States v. Pauley, 511 F.3d
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468, 473 (4th Cir. 2007). Moreover, the district court based
its sentence on its “individualized assessment” of the facts of
the case. United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). Lastly, Marshall has not rebutted the presumption that
his within-guidelines sentence is presumptively reasonable.
Thus, the district court did not abuse its discretion in
imposing the chosen sentence.
Having reviewed the record in this case and finding no
meritorious issues for review, we affirm the district court’s
judgment. This court requires that counsel inform Marshall in
writing of his right to petition the Supreme Court of the United
States for further review. If Marshall requests that a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel's motion must state that
a copy thereof was served on Marshall. 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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