United States v. Armstrong , 406 F. App'x 722 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5038
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD TIBERIO ARMSTRONG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00186-NCT-1)
Submitted: December 7, 2010 Decided: December 30, 2010
Before SHEDD, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., GRAY JOHNSON BLACKMON LEE & LAWSON, LLP,
Greensboro, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Tiberio Armstrong appeals his conviction and
120-month sentence imposed by the district court following a
guilty plea to conspiracy to distribute fifty grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a), (b)(1)(A), and
846 (2006). Armstrong’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that, in
his opinion, there are no meritorious issues for appeal, but
questioning whether Armstrong’s guilty plea was valid and
whether the sentence imposed was unreasonable. Armstrong has
filed pro se supplemental briefs claiming that his confession
was coerced in that police promised not to charge him with a
drug offense in exchange for his full confession and cooperation
against other co-conspirators, and that the Fair Sentencing Act
of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010), reduced the
mandatory minimum sentence to which he was subject. We affirm.
Because Armstrong 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 establish plain error,
[Armstrong] 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).
Our review of the record leads us to conclude that the district
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court substantially complied with Rule 11, and that Armstrong’s
guilty plea was knowing and voluntary.
We also conclude that Armstrong’s sentence is both
procedurally and substantively reasonable. We review a sentence
for abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error. United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008). Significant procedural errors include “‘failing to
calculate (or improperly calculating) the Guidelines range’” or
“‘failing to consider the § 3553(a) factors.’” United States v.
Carter, 564 F.3d 325, 329 (4th Cir. 2009) (quoting Gall, 552
U.S. at 51.). We then consider the substantive reasonableness
of the sentence, taking into account the totality of the
circumstances. Id. “A statutorily required sentence . . . is
per se reasonable.” United States v. Farrior, 535 F.3d 210, 224
(4th Cir. 2008). We have reviewed the record and conclude that
the district court did not abuse its discretion in sentencing
Armstrong, and that the sentence he received is reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We have considered the claims asserted in Armstrong’s
pro se supplemental briefs and conclude they are without merit.
We therefore affirm the district court’s judgment. This court
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requires that counsel inform Armstrong in writing of his right
to petition the Supreme Court of the United States for further
review. If Armstrong 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 Armstrong.
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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