United States v. Lyndon Dunham , 548 F. App'x 90 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LYNDON DUNHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:11-cr-00166-BR-1)
Submitted: December 17, 2013 Decided: December 19, 2013
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark D. Stewart, BURCH LAW OFFICE, Greenville, North 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Unpublished opinions are not binding precedent in this circuit.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:
Lyndon Dunham pleaded guilty pursuant to a written
plea agreement to Hobbs Act robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 1951, 2 (2012), and possessing a
firearm in furtherance of a crime of violence and aiding and
abetting, in violation of 18 U.S.C. §§ 924(c)(1)(A), 2 (2012).
Dunham received a sentence of forty-one months’ imprisonment for
the robbery, followed by a consecutive eighty-four months for
the firearm offense. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal, but
questioning the district court’s compliance with Federal Rule of
Criminal Procedure 11 and the reasonableness of the sentence.
Dunham was advised of his right to file a pro se supplemental
brief, but has not done so. The Government declined to file a
brief. We affirm.
Because Dunham did not move in the district court to
withdraw his guilty plea, we review the Rule 11 hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). To prevail under this standard, Dunham must
establish that an error occurred, was plain, and affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126 (2013); United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Our review of the record establishes
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that the district court substantially complied with Rule 11’s
requirements, ensuring that Dunham’s plea was knowing and
voluntary.
We review Dunham’s sentence for reasonableness, “under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51; United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After determining
whether the district court correctly calculated the advisory
Guidelines range, we must decide whether the court considered
the 18 U.S.C. § 3553(a) (2012) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
Once we have determined that the sentence is free of
procedural error, we consider its substantive reasonableness,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51. If the sentence is within the appropriate
Guidelines range, we presume that the sentence is reasonable.
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).
Such a presumption is rebutted only if the defendant
demonstrates “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
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445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
We conclude that the district court committed neither
procedural nor substantive error in sentencing Dunham. The
court correctly calculated and considered as advisory the
applicable Guidelines range. After hearing argument from
defense counsel for a downward variance and allocution from
Dunham, the district court explained that the Guidelines
adequately accounted for Dunham’s lack of criminal history and
that a within-Guidelines sentence therefore was appropriate.
Counsel does not offer any grounds to rebut the presumption on
appeal that Dunham’s within-Guidelines sentence is substantively
reasonable, and our review reveals none. Accordingly, we
conclude that the district court did not abuse its discretion in
sentencing Dunham.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Dunham’s conviction and sentence.
This court requires that counsel inform Dunham, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Dunham 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
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representation. Counsel’s motion must state that a copy thereof
was served on Dunham.
AFFIRMED
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