United States v. Martisko , 328 F. App'x 239 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL B. MARTISKO,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:07-cr-00104-IMK-3)
Submitted: April 28, 2009 Decided: May 20, 2009
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kumaraswamy Sivakumaran, STERLING LEGAL SERVICES PLLC,
Clarksburg, West Virginia, for Appellant. Zelda Elizabeth
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael B. Martisko timely appeals from the twenty-
four month sentence imposed following his guilty plea to one
count of aiding and abetting in the distribution of cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006) and 18 U.S.C. § 2 (2006). Martisko’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether the district court complied with Federal
Rule of Criminal Procedure 11 (2009) (“Rule 11”) in accepting
Martisko’s guilty plea and whether Martisko’s sentence was
reasonable. Martisko has not filed a pro se brief, though he
was informed of his right to do so. Finding no error, we
affirm.
Martisko first asks this court to review whether the
district court complied with Rule 11 in accepting his guilty
plea. Because Martisko did not move to withdraw his guilty plea
in the district court or raise any objections to the Rule 11
plea colloquy, we review the adequacy of the plea hearing for
plain error. United States v. Martinez, 277 F.3d 517, 524-27
(4th Cir. 2002); United States v. General, 278 F.3d 389, 393
(4th Cir. 2002). To demonstrate plain error, Martisko must show
that “error occurred, that the error was plain, and that the
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error affected his substantial rights.” General, 278 F.3d at
393 (internal quotation marks and citation omitted).
Our review of the plea hearing transcript reveals that
the district court substantially complied with Rule 11 in
accepting Martisko’s guilty plea. Martisko’s plea was knowing,
voluntary, and intelligently made, with full understanding of
the consequences of his plea, and the district court found
sufficient factual basis for the plea. See Fed. R. Crim. P.
11(b). Although the district court did not explain its
authority to order restitution or make any mention of forfeiture
as required by Rule 11(b)(1)(J)-(K), these omissions did not
affect Martisko’s substantial rights because the court did not
ultimately order restitution and forfeiture is not applicable.
Accordingly, we find no plain error.
Martisko also asks this court to review the
reasonableness of his sentence. Consistent with United
States v. Booker, 543 U.S. 220 (2005), the district court is
required to follow a multi-step process at sentencing. First,
it must calculate the proper sentencing range prescribed by the
Guidelines. Gall v. United States, 128 S. Ct. 586, 596 (2007);
see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.
2008). The court must then consider that range in light of the
parties’ arguments regarding the appropriate sentence and the
factors set out in 18 U.S.C. § 3553(a) (2006) before imposing
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sentence. Gall, 128 S. Ct. at 596; see also Abu Ali, 528 F.3d
at 260.
This court reviews the district court’s sentence for
abuse of discretion. Gall, 128 S. Ct. at 591. First, we must
ensure the district court did not commit any “significant
procedural error,” such as failing to consider the 18 U.S.C.
§ 3553(a) factors or failing to adequately explain the sentence.
Id. at 597. Second, we must consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id. If the sentence imposed is within
the appropriate Guidelines range, it is presumptively
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008). The presumption may be rebutted by a showing “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks and citation omitted).
Our review of the record reveals no procedural or
substantive error in the district court’s imposition of
Martisko’s sentence. The district court properly calculated the
appropriate Guidelines range of twenty-four to thirty months and
considered the Guidelines as advisory. Additionally, the
district court considered the 18 U.S.C. § 3553(a) factors,
Martisko’s allocution, and the arguments of both attorneys
before imposing Martisko’s sentence. The district court also
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provided a lengthy explanation of the reasons for its sentence,
citing Martisko’s long criminal history, the nature of the
current offense, and the need to protect the public. Moreover,
we view Martisko’s within-Guidelines sentence on appeal as
presumptively reasonable and Martisko has not rebutted that
presumption. Thus, we conclude that the district court did not
abuse its discretion in sentencing Martisko and the sentence is
reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Martisko’s conviction and sentence. This
court requires that counsel inform Martisko, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Martisko requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Martisko. We dispense with oral argument because
the facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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