United States v. McClam ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5022
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARDELL JERMAINE MCCLAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00230-TDS-1)
Submitted: November 4, 2010 Decided: May 27, 2011
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH AND FISCHER, Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, Paul Alexander
Weinman, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wardell Jermaine McClam Jr., appeals his conviction
and 138 month sentence for one count of conspiracy to distribute
cocaine base in violation of 21 U.S.C. §§ 846; 841(a)(1),
(b)(1)(A) (2006), and one count of possession of a firearm by a
felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006).
Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal but questioning whether McClam’s
indictment was valid, whether his guilty plea was knowing,
voluntary, and supported by an adequate factual basis, and
whether his sentence was reasonable. McClam was notified of his
right to file a pro se supplemental brief and has not done so.
Counsel first questions whether the indictment was
sufficient to allege the offenses charged against McClam. A
counseled guilty plea waives all antecedent nonjurisdictional
defects not logically inconsistent with the establishment of
guilt, unless the appellant can show that his plea was not
voluntary and intelligent because the advice of counsel “was not
within the range of competence demanded of attorneys in criminal
cases.” Tollett v. Henderson, 411 U.S. 258, 266-67 (1973)
(internal quotations and citation omitted). Defects in the
indictment are not jurisdictional. United States v. Cotton, 535
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U.S. 625, 631 (2002). Accordingly, McClam’s counseled guilty
plea waives his claim that the indictment was defective.
Next, counsel questions whether the district court
ensured that McClam’s guilty plea was knowing, voluntary, and
supported by an adequate factual basis. Prior to accepting a
guilty plea, a trial court, through colloquy with the defendant,
must inform the defendant of, and determine that the defendant
understands the nature of, the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b). “In reviewing the
adequacy of compliance with Rule 11, this court should accord
deference to the trial court’s decision as to how best to
conduct the mandated colloquy with the defendant.” United
States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because McClam did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [McClam]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights. United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (citation
omitted). Even if McClam satisfies these requirements, the
court retains discretion to correct the error, which it should
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not exercise unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Id.(internal quotation marks and citation omitted).
A review of the record reveals that the district court
complied with the requirements of Rule 11, ensuring that
McClam’s plea was knowing and voluntary, that he understood the
rights he was giving up by pleading guilty and the sentence he
faced, and that he committed the offense to which he pled
guilty. We accordingly affirm McClam’s conviction.
Finally, counsel questions whether McClam’s sentence
was legal. A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). Properly preserved claims of procedural error
are subject to harmless error review. Lynn, 592 F.3d at 576.
If the sentence is free of significant procedural error, the
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appellate court reviews the substantive reasonableness of the
sentence. Id. at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
Here, the court properly calculated the advisory
Guidelines range and imposed a sentence significantly below the
low end of that range. Moreover, the court discussed the
§ 3553(a) factors with McClam at length and offered an
individualized explanation for the sentence imposed. We
conclude that the sentence was not procedurally unreasonable.
Once the court has determined there is no procedural
error, it must then consider the substantive reasonableness of
the sentence, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51. Here, the sentence was
significantly lower than the low end of the advisory Guidelines
range, and we conclude it was substantively 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 the district court’s judgment.
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
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a copy thereof was served on the client. 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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