United States v. Alan , 258 F. App'x 617 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4452
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY DEE ALAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:01-cr-00076)
Submitted: November 28, 2007 Decided: December 19, 2007
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Dee Alan pled guilty, without a plea agreement, to
one count of possession with intent to distribute fifty grams or
more of a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1), (b) (West
1999 & Supp. 2007). The district court sentenced Alan to ninety-
seven months in prison. Alan timely appealed. Alan’s sole
contention is that his conviction is invalid because, in finding
that there was a sufficient factual basis to support Alan’s guilty
plea, the district court improperly relied on two pounds of sham
methamphetamine (“flex”) found in Alan’s car that he contends were
placed there without his knowledge by a confidential informant
during a reverse sting operation. Because he failed to raise this
issue in the district court, we review Alan’s claim for plain
error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002).
Under Rule 11(b)(3) of the Federal Rules of Criminal
Procedure, a district court must find a sufficient factual basis to
support a defendant’s guilty plea before entering judgment upon
that plea. Fed. R. Crim. P. 11(b)(3); United States v. Mitchell,
104 F.3d 649, 652 (4th Cir. 1997). The district court may rely on
“anything that appears on the record” to conclude that a factual
basis exists. United States v. DeFusco, 949 F.2d 114, 120 (4th
Cir. 1991).
Contrary to Alan’s contention, the district court found
a factual basis for Alan’s guilty plea before making any rulings on
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the flex. The court’s rulings on the flex concerned the quantity
of drugs for which Alan was responsible for purposes of sentencing
rather than for purposes of establishing a factual basis for Alan’s
guilty plea. Moreover, our review of the record reveals that there
was sufficient evidence in the record independent of the flex to
establish a factual basis for Alan’s guilty plea. Accordingly, we
find that the district court did not plainly err in concluding that
there was a sufficient factual basis to support Alan’s guilty plea.
For these reasons, we affirm Alan’s conviction. 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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