United States v. Galloway , 271 F. App'x 296 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD KENNETH GALLOWAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00251)
Submitted: March 27, 2008 Decided: April 1, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Clinton L. Rudisill, RUDISILL & ASSOCIATES, PA, Marshall, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard K. Galloway pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). He received the statutorily mandated minimum sentence of
180 months of imprisonment and a five-year term of supervised
release. Galloway’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying there are no
meritorious issues for appeal and raising no specific issue in his
brief. Galloway has submitted a pro se supplemental brief. The
Government declined to file a brief. Finding no reversible error,
we affirm.
Because Galloway did not move in the district court to
withdraw his guilty plea, any error in the Fed. R. Crim. P. 11
hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing standard).
Prior to accepting a guilty plea, the trial court must ensure the
defendant understands the nature of the charges against him, the
mandatory minimum and maximum sentences, and other various rights,
so it is clear that the defendant is knowingly and voluntarily
entering his plea. The district court must also determine whether
there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(1),
(3); United States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir.
1991). Counsel does not specify any deficiencies in the district
court's Rule 11 inquiry, and our review of the plea hearing
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transcript reveals that the court conducted a thorough Rule 11
colloquy that assured Galloway’s plea was made both knowingly and
voluntarily.
With respect to Galloway’s sentence, appellate courts
review sentences imposed by district courts for reasonableness,
applying an abuse of discretion standard. Gall v. United States,
128 S. Ct. 586, 597 (2007). A sentence within a correctly
calculated advisory guidelines range is presumptively reasonable.
United States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert.
denied, 547 U.S. 1142 (2006); see also Rita v. United States, 127
S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guidelines sentence).
Our review of the record reveals no procedural or
substantive error with respect to Galloway’s sentence. Galloway’s
180-month sentence, the statutory minimum, is presumptively
reasonable. See U.S. Sentencing Guidelines Manual § 5G1.2(b)
(2005) (stating that, where a statutorily required minimum sentence
is greater than the maximum of the applicable guideline range, the
statutorily required minimum sentence shall be the guideline
sentence). We therefore conclude that the district court did not
abuse its discretion in imposing the sentence.*
*
The district court issued an alternative judgment imposing a
135-month sentence based on Galloway’s motion for a downward
departure. However, the district court is not authorized to depart
below a statutory mandatory minimum term of imprisonment absent a
motion by the Government under 18 U.S.C. § 3553(e) (2000).
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In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. We further
conclude that the claims raised in Galloway’s pro se supplemental
brief are without merit. Accordingly, we affirm the district
court’s judgment. This court requires that counsel inform
Galloway, in writing, of his right to petition the Supreme Court of
the United States for further review. If Galloway 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 Galloway. 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
Melendez v. United States, 518 U.S. 120, 128-30 (1996). Because no
such motion was filed in this case, the alternative judgment is of
no effect.
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