United States v. Morton , 162 F. App'x 201 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4302
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY LEE MORTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-790)
Submitted: November 28, 2005 Decided: December 30, 2005
Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary Lee Morton pled guilty to conspiracy to traffic in
and use unauthorized access devices to obtain money, goods, and
services valued at over $1000, in violation of 18 U.S.C. § 371(2000). He was sentenced to forty-three months of imprisonment.
On appeal, his attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising the issue of whether the
court fully complied with Fed. R. Crim. P. 11 in accepting Morton’s
guilty plea, and whether his sentence was reasonable. Although
advised of his right to do so, Morton has not filed a supplemental
pro se brief.
Because Morton did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the Rule
11 hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that “plain
error analysis is the proper standard for review of forfeited error
in the Rule 11 context”). Before a reviewing court may correct a
trial error to which there was no contemporaneous objection, three
factors must be shown: (1) there was error, (2) the error was
plain, and (3) the error affected substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If these three factors
are satisfied, an appellate court should exercise its discretion to
correct the error when the error “‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”
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Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). Our review of the plea hearing transcript reveals that
the district court conducted a thorough Rule 11 colloquy that
assured Morton’s plea was made both knowingly and voluntarily. See
United States v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991).
Accordingly, we find Morton’s guilty plea was knowing and voluntary
and properly accepted by the district court.
Morton also contends that his sentence was unreasonable.
After the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), a sentencing court is no longer bound by the
range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting
after Booker, sentencing courts should determine the sentencing
range under the guidelines, consider the other factors under
§ 3553(a), and impose a reasonable sentence within the statutory
maximum). However, in determining a sentence post-Booker,
sentencing courts are still required to calculate and consider the
guideline range prescribed thereby as well as the factors set forth
in 18 U.S.C. § 3553(a) (2000). Id.As stated in Hughes, this court will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47. This court has further stated
that “while we believe that the appropriate circumstances for
imposing a sentence outside the guideline range will depend on the
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facts of individual cases, we have no reason to doubt that most
sentences will continue to fall within the applicable guideline
range.” United States v. White, 405 F.3d 208, 219 (4th Cir.),
cert. denied, 74 U.S.L.W. 3302 (U.S. Nov. 14, 2005) (No. 05-6981).
We find the district court properly calculated the guideline range
and appropriately treated the guidelines as advisory. The court
sentenced Morton only after considering and examining the
sentencing guidelines and the factors set forth in § 3553(a). The
court also clearly articulated its rationale for the sentence
imposed. Based on these factors, and because the court sentenced
Morton within the applicable guideline range and the statutory
maximum, we find that Morton’s sentence of forty-three months of
imprisonment is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Morton’s conviction and sentence. This
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for
further review. If the client 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 the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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