United States v. Brown , 259 F. App'x 605 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4356
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CEDRIC LAMAR BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-01300-RBH)
Submitted: December 12, 2007 Decided: December 28, 2007
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas G. Nessler, Jr., Surfside Beach, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cedric Lamar Brown pled guilty pursuant to a written plea
agreement to one count of conspiracy to possess with intent to
distribute and to distribute fifty grams or more of cocaine base,
in violation of 21 U.S.C. § 846 (2000). The court sentenced Brown
to 240 months in prison, and Brown timely appealed. Brown’s
attorney filed a brief in accordance with Anders v. California, 386
U.S. 739 (1967), certifying that there are no meritorious grounds
for appeal, but questioning whether the district court complied
with Fed. R. Crim. P. 11 in the plea hearing, whether Brown should
have been permitted to withdraw his guilty plea, and whether the
sentence was unreasonable. The Government did not file a reply
brief. Brown filed a pro se supplemental brief challenging the
factual basis for his plea and the 100:1 sentencing disparity
between crack cocaine and cocaine powder. Finding no reversible
error, we affirm.
Brown suggests that the district court erred by not fully
complying with Fed. R. Crim P. 11 at the guilty plea hearing.
Contrary to this assertion, the district court meticulously
followed Rule 11 to ensure that Brown fully understood the
significance of his guilty plea and that the plea was knowing and
voluntary. Brown stated that he was of sound mind and was not
under the influence of drugs or alcohol, and the court found him
competent to enter a plea. Brown had discussed the charges and
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consulted with his attorney and was satisfied with the services
rendered. Counsel summarized the terms of the plea agreement for
the court, and Brown agreed that those were its terms. Brown
affirmed that the plea agreement represented the entire agreement
between the parties; that no one had made promises to him other
than what was written therein; that no one forced him to plead
guilty; that no one had promised him a particular sentence; that
his sentence would be determined after the presentence report was
completed; that the guidelines were advisory; and that the judge
could sentence him to a punishment more or less severe than the
guidelines range. The court explained relevant conduct, and
informed Brown that he could be held responsible for acts of co-
conspirators and that such conduct could be used to enhance his
sentence. Brown agreed that if his sentence was more severe than
he expected, he was still bound by his plea and would not be
permitted to withdraw it. Brown also agreed that by pleading
guilty, he was indeed guilty of the charges, he admitted the facts
surrounding the charges, he waived any defenses and any defects in
the proceedings, and he was giving up his right to a jury trial.
The court explained the maximum penalties for each count Brown
faced. The court found Brown’s plea was knowing and voluntary, and
accepted the plea of guilty. The district court fully complied
with its Rule 11 obligations, and we conclude this claim is
meritless.
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Brown contends that the district court erred when it
denied his pro se motion to withdraw his guilty plea. After a plea
has been entered, a defendant may withdraw the plea only if he can
show a “fair and just reason” for withdrawal. Fed. R. Crim. P.
11(d)(2)(B). This court reviews the district court’s refusal to
allow a defendant to withdraw a guilty plea for abuse of
discretion. United States v. Bowman, 348 F.3d 408, 413-14 (4th
Cir. 2003); United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.
2000).
When Brown filed his pro se motion, the court appointed
new counsel to assist him and held a hearing on whether Brown’s
first counsel had failed to explain the waiver of appellate rights.
The court struck the appellate waiver from the record and permitted
him to file an appeal, finding no other basis on which to find that
the plea agreement was not voluntarily and freely entered. The
only other matter raised in the motion was that his plea agreement
spelled his name incorrectly. The misspelling of Brown’s name did
not amount to a “fair and just reason” to withdraw his plea. The
district court did not abuse its discretion when it denied Brown’s
motion to withdraw his guilty plea.
Brown next suggests that the district court imposed an
unreasonable sentence of 240 months in prison. After United
States v. Booker, 543 U.S. 220 (2005), a district court is no
longer bound by the range prescribed by the sentencing guidelines.
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However, in imposing a sentence post-Booker, courts still must
calculate the applicable guidelines range after making the
appropriate findings of fact and consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007). United States v. Moreland, 437
F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
This court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” Id. at 433(internal quotation marks and citation omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006). “The district court need not discuss each factor set forth
in § 3553(a) ‘in checklist fashion;’ ‘it is enough to calculate the
range accurately and explain why (if the sentence lies outside it)
this defendant deserves more or less.’” Moreland, 437 F.3d at 432(quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
Here, the district court sentenced Brown post-Booker and
appropriately treated the guidelines as advisory. The court
considered and examined the sentencing guidelines and the § 3553(a)
factors, as instructed by Booker. Brown admitted in his validly
entered guilty plea that he was involved in the distribution of
more than fifty grams of crack cocaine. With a total offense level
of 34 and a criminal history score of III, the applicable advisory
guidelines range was 188 to 236 months in prison. However, due to
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the 21 U.S.C. § 851 (2000) enhancement for a prior drug felony, the
statutory penalty range was enhanced to a minimum term of twenty
years and a maximum term of life imprisonment. Brown agreed he
had the requisite prior conviction to enhance his sentence pursuant
to § 851. Brown’s 240-month sentence is exactly the statutorily
mandated minimum, and is well below the life statutory maximum
sentence pursuant to 21 U.S.C. § 851. Moreover, the court
explained that it had taken the sentencing guidelines and § 3553(a)
factors into account, and the sentence imposed was based on the
mandatory minimum sentence required by statute and was appropriate
considering both the presentence report and the court’s findings of
fact. Neither Brown nor the record suggests any information to
rebut the presumption that his sentence was reasonable.
In his supplemental brief, Brown argues that the district
court failed to comply with Fed. R. Civ. P. 11 by not ensuring that
there was an adequate basis for his guilty plea. Contrary to
Brown’s assertion, the district court heard adequate evidence that
Brown had conspired with others to intentionally possess and sell
crack cocaine. Brown agreed that he was supplied with powder
cocaine by an F.B.I. informant, that he cooked half of the drugs
into crack cocaine, and subsequently sold it as crack cocaine.
Brown agreed with the factual basis summary provided at his Rule 11
hearing, admitted the facts surrounding the charge, and agreed that
he was indeed guilty of the charge. Brown also agreed that he
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waived any defenses and any defects in the proceedings. Again, the
district court adequately complied with Rule 11, and Brown’s guilty
plea was both knowing and voluntary. We conclude this claim lacks
merit.
Finally, Brown takes issue with the 100:1 crack cocaine
versus powder cocaine sentencing disparity. He acknowledges that
this differential is constitutional, see, e.g., United States v.
Ford, 88 F.3d 1350, 1365 (4th Cir. 1996); United States v. Fisher,
58 F.3d 96, 99-100 (4th Cir. 1995); United States v. D’Anjou, 16
F.3d 604, 612 (4th Cir. 1994), but merely expresses his objection
to the disparity. We note that the Sentencing Commission has
recently amended the Guidelines to reduce this disparity. USSG
Amend. 706 (effective Nov. 1, 2007). However, there is no dispute
that Brown’s sentence was properly calculated based on the
guidelines in effect at the time of his March 2007 sentencing. See
USSG § 1B1.11.*
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm Brown’s conviction and sentence. This court requires that
*
While Brown may apply to the district court for a reduction
in sentence pursuant to 18 U.S.C. § 3582(c) (2000) in the event the
Sentencing Commission makes Amendment 706 retroactive, we note
without deciding the issue that it is unlikely that even
retroactive application of the amendment could benefit Brown as his
sentence appears to constrained by the 20-year mandatory minimum
term of imprisonment required to be imposed upon defendants like
Brown who are subject to the enhanced penalty provisions of 21
U.S.C. § 841(b) (2000).
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counsel inform Brown, in writing, of the right to petition the
Supreme Court of the United States for further review. If Brown
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 Brown.
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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