United States v. Teddy McGee ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TEDDY DWANE MCGEE,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00048-RLV-DSC-3)
Submitted: March 19, 2018 Decided: March 30, 2018
Before TRAXLER, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Teddy Dwane McGee appeals his conviction and 120-month sentence after
pleading guilty to conspiracy to distribute and possess with the intent to distribute a
mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2012). McGee’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal but questioning whether
there was an error in McGee’s Fed. R. Crim. P. 11 hearing and whether his sentence is
unreasonable. McGee has been notified of his right to file a pro se brief, but he has not
filed one. We affirm.
McGee did not attempt to withdraw his guilty plea in the district court, and thus
we review the Rule 11 hearing for plain error. United States v. Martinez, 277 F.3d 517,
527 (4th Cir. 2002). To establish plain error, an appellant must demonstrate “that an
error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights.
Even if an appellant satisfies these elements, we may exercise our discretion to correct
the error only if it seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (citation,
alteration, and internal quotation marks omitted). Because we detect no reversible error
in the district court’s Rule 11 plea colloquy, we affirm McGee’s conviction.
We ordinarily review a criminal sentence for both procedural and substantive
reasonableness “under a deferential abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 41 (2007). However, because McGee did not argue for a different sentence
or raise any specific objections to his sentence before the district court, we review all
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sentencing issues, other than a substantive challenge to the length of the sentence, only
for plain error. See United States v. Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010);
United States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010). Moreover, we presume that
a sentence below a properly calculated Sentencing Guidelines range is reasonable.
United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Having carefully reviewed the record, we find no error, let alone plain error, in the
district court’s imposition of McGee’s sentence. The district court properly calculated
the advisory Guidelines range and sufficiently explained its reasons for imposing the
sentence McGee received. Further, McGee has not made the showing necessary to rebut
the presumption of reasonableness that we afford his below-Guidelines sentence.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform McGee, in writing, of the right to
petition the Supreme Court of the United States for further review. If McGee 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 McGee.
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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