United States v. Tyrone Rogers , 678 F. App'x 108 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4418
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE ROGERS, a/k/a Rone,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:15-cr-00049-H-1)
Submitted: February 23, 2017 Decided: February 27, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville,
South Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Rogers appeals his below-Guidelines 108-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute phencyclidine
and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 846 (2012). On appeal, Rogers’ counsel filed a brief
under Anders v. California, 386 U.S. 738 (1967), asserting that
he found no meritorious issues for appeal but questioning the
validity of Rogers’ plea and the reasonableness of his sentence.
Rogers was informed that he could file a supplemental pro se
brief, but has not done so. The Government has not responded to
the Anders brief.
In accordance with Anders, we have reviewed the entire
record in this case. We review errors raised only on appeal for
plain error. United States v. Lockhart, 58 F.3d 86, 88 (4th
Cir. 1995). Plain error requires that “(1) an error was
committed; (2) the error was plain; and (3) the error affected
[Rogers’] substantial rights.” Id. An error affects
substantial rights if it was prejudicial, meaning “[i]t must
have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734, (1993).
At the plea hearing, while the magistrate judge did not
have the plea agreement read in open court, he had a copy of the
agreement, described the essential exchange between the parties,
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and confirmed that Rogers understood the plea and consulted with
counsel about it. Because all parties understood the plea and
the magistrate judge discussed the main purpose of the plea, the
failure to read the agreement in open court did not affect the
outcome of the plea hearing and no reversible error occurred.
Nor did reversible error occur at the sentencing hearing
when the district court did not expressly ask whether Rogers had
read the presentence report or consulted with counsel about it.
After Rogers’ counsel objected to the report, the district court
significantly lowered the Sentencing Guidelines range from the
range in the presentence report. Accordingly, the error did not
affect Rogers’ sentence, and remand for resentencing would be
fruitless. See United States v. Garrett, 371 F. App’x 429, 430
(4th Cir. 2010) (No. 09-4953).
Our review of the record reveals no other meritorious
issues for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Rogers, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Rogers 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 Rogers.
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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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