United States v. Allen Gibbs , 571 F. App'x 179 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4734
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN GEROME GIBBS, a/k/a Fireball,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (4:12-cr-00100-FL-1)
Submitted: May 1, 2014 Decided: May 8, 2014
Before GREGORY, DUNCAN, and KEENAN, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Allen Gerome Gibbs pled guilty, pursuant to a written
plea agreement, to conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846. He was designated a career offender
and sentenced to 189 months’ imprisonment, which was 73 months
below the bottom of his advisory Guidelines range. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that there are no nonfrivolous
grounds for appeal, but asking us to review Gibbs’ conviction
and the reasonableness of the sentence. Although advised of his
right to do so, Gibbs has declined to file a pro se supplemental
brief. The Government has not filed a response. For the
reasons that follow, we affirm.
Because Gibbs did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To prevail under this standard, Gibbs
must establish that an error occurred, that this error was
plain, and that it affected his substantial rights. United
States v. Massenburg, 564 F.3d 337, 342–43 (4th Cir. 2009). Our
review of the record establishes that the magistrate judge
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substantially complied with the mandates of Rule 11, * ensuring
that Gibbs’ plea was knowing and voluntary and supported by an
independent basis in fact. We therefore affirm Gibbs’
conviction.
We review Gibbs’ sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 46, 51 (2007). This review requires consideration of
both the procedural and substantive reasonableness of the
sentence. Id. at 51. We first assess whether the district
court properly calculated the defendant’s advisory Guidelines
range, considered the factors set forth in 18 U.S.C. § 3553(a),
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Id. at 49–51; see
United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir. 2010). If
there is no procedural error, we review the substantive
reasonableness of the sentence, “examin[ing] the totality of the
circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied
*
Though the magistrate judge did not inform Gibbs that any
false statements could be used against him in a separate
prosecution for perjury, see Fed. R. Crim. P. 11(b)(1)(A), we
conclude that this error did not affect Gibbs’ substantial
rights because there is no indication that Gibbs lied or is
being prosecuted for perjury. United States v. Olano, 507 U.S.
725, 734-35 (1993). Moreover, Gibbs does not allege that, but
for this error, “he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
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the standards set forth in § 3553(a).” United States v.
Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
We have thoroughly reviewed the record and conclude
that the sentence is both procedurally and substantively
reasonable. We find no error in the district court’s
computation of Gibbs’ Guidelines range, including the career
offender designation, the opportunities the court provided Gibbs
and his counsel to speak in mitigation, or the court’s
explanation of the sentence imposed by reference to the relevant
§ 3553(a) factors. See United States v. Chandia, 675 F.3d 329,
341-42 (4th Cir.) (recognizing that a sentencing court is “not
required to provide a lengthy explanation or robotically tick
through § 3553(a)’s every subsection, particularly when imposing
a below-Guidelines sentence” (internal quotation marks and
alteration omitted)), cert. denied, 133 S. Ct. 609 (2012).
Finally, Gibbs’ below-Guidelines sentence is presumptively
substantively reasonable, see United States v. Susi, 674 F.3d
278, 289 (4th Cir. 2012), and we discern no basis in the record
to overcome this presumption.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the judgment of the district court. This
Court requires that counsel inform Gibbs, in writing, of the
right to petition the Supreme Court of the United States for
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further review. If Gibbs 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 Gibbs. 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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