United States v. Nicholson , 365 F. App'x 465 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4281
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO RANTELLE NICHOLSON, a/k/a Zo,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00117-HMH-4)
Submitted: January 29, 2010 Decided: February 16, 2010
Before MICHAEL and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South Carolina,
for Appellant. W. Walter Wilkins, United States Attorney, E.
Jean Howard, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Rantelle Nicholson pled guilty to armed bank
robbery, 18 U.S.C. § 2113(a), (d) (2006), and aiding and
abetting, 18 U.S.C. § 2 (2006) (Count 1), and use and carrying
of a firearm during and in relation to a crime of violence, 18
U.S.C.A. § 924(c) (West Supp. 2009) (Count 2). Nicholson was
sentenced to 161 months of imprisonment. Nicholson timely
appeals. Counsel has raised two issues: (1) whether Nicholson’s
guilty plea was knowing and voluntary and (2) whether his
sentence was unreasonable. For the reasons that follow, we
affirm.
The Government first asks us to dismiss the appeal,
based on Nicholson’s waiver of his appellate rights in his plea
agreement. We decline to enforce the waiver, however, as this
provision of the plea agreement was not reviewed at Nicholson’s
plea hearing. See United States v. Wessells, 936 F.2d 165, 167-
68 (4th Cir. 1991).
Nonetheless, we find that Nicholson’s claims fail on
the merits. First, the record reveals that Nicholson’s guilty
plea was knowing and voluntary. Blackledge v. Allison, 431 U.S.
63, 73-74 (1977) (holding that in the absence of clear and
convincing evidence to the contrary, a defendant is bound by
statements made under oath during his plea colloquy). Moreover,
because Nicholson did not move in the district court to withdraw
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his guilty plea, any error in the Rule 11 hearing is reviewed
for plain error. United States v. Martinez, 277 F.3d 517, 524,
527 (4th Cir. 2002), which Nicholson has failed to establish.
Second, Nicholson’s seventy-seven-month sentence for
Count 1 and eight-four-month consecutive sentence for Count 2
represent the bottom of his correctly-calculated advisory
Sentencing Guidelines range. We find no procedural or
substantive error. Gall v. United States, 552 U.S. 38, 51
(2007). Moreover, we find Nicholson’s disparity argument fails.
United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996).
Finally, we do not review a district court’s decision to deny a
motion for a downward departure, unless the court was under the
mistaken impression that it lacked the authority to depart.
United States v. Matthews, 209 F.3d 338, 352-53 (4th Cir. 2000).
Nicholson has pointed to no record evidence to support such a
claim.
Accordingly, we affirm. We grant Nicholson’s motion
to file a pro se supplemental brief but find no meritorious
issues raised therein. We deny Nicholson’s motion to relieve
counsel. 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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