United States v. Bailey , 160 F. App'x 309 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4239
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HERBERT BRUCE BAILEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (CR-03-402)
Submitted: December 22, 2005 Decided: December 28, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cameron B. Littlejohn, Jr., Columbia, South Carolina, for
Appellant. Jane Barrett Taylor, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Herbert Bruce Bailey pled guilty to distribution of 23.31
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000). The district court sentenced Bailey to 100 months’
imprisonment, five years of supervised release, and ordered payment
of a $100 statutory assessment.* Bailey’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1067),
stating that there are no meritorious grounds for appeal, but
questioning whether the district court complied with the
requirements of Fed. R. Crim. P. 11 in accepting Bailey’s plea, and
whether the sentence imposed was reasonable. Bailey was given an
opportunity to file a pro se brief, and has asserted error pursuant
to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Bailey did not move in the district court to withdraw his
guilty plea; therefore 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). We have carefully
reviewed the transcript of the Rule 11 hearing and find no plain
*
The probation officer calculated a sentencing guideline range
of 135 to 169 months’ imprisonment founded on a base offense level
of 38 (using a drug quantity of 5.5 kilos of crack cocaine and 3.2
kilos of powder cocaine), an adjusted offense level of 33, and a
criminal history category of I. After careful consideration of the
facts and evidence, the district court applied an additional three-
level reduction to the offense level after considering the drug
weight which Bailey admitted distributing, his sparse criminal
record, and his lack of leadership involvement, with an attendant
revised guideline range of 97 to 121 months.
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error in the district court’s acceptance of Bailey’s guilty plea.
See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
We further find that the district court properly
“consult[ed the] Guidelines and [took] them into account when
sentencing,” Booker, 125 S. Ct. at 767, that it made all the
factual findings appropriate for that determination, considered the
sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and imposed a sentence
that was “within the statutorily prescribed range and . . .
reasonable.” United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005). Contrary to the assertions of Bailey and his attorney,
the district court properly sentenced Bailey in compliance with the
mandates of Booker and the sentence was reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Bailey’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.
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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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