United States v. Gamble , 426 F. App'x 146 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5047
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JUSTIN CLIFFORD GAMBLE,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:08-cr-00928-HMH-1)
Submitted: April 22, 2011 Decided: May 2, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, LLP,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Clifford Gamble pleaded guilty to possession
with intent to distribute and distribution of methamphetamine,
in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999
& Supp. 2010) (Count Three), and possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count Four). The Government dismissed
Counts One and Two of the indictment. Gamble was sentenced to
forty-six months’ imprisonment for Count Three, the bottom of
the Guidelines range, and a consecutive sixty-month sentence for
Count Four, the mandatory statutory minimum.
In this appeal, Gamble first argues that his guilty
plea was not knowing and voluntary. He asserts that he was
instructed to plead guilty by his defense counsel and that his
plea was entered under duress.
Gamble did not move to withdraw his guilty plea and we
therefore review the adequacy of the plea pursuant to Fed. R.
Crim. P. 11 for plain error. See United States v. Vonn,
535 U.S. 55, 58-59 (2002) (holding defendant who lets Rule 11
error pass without objection in the district court must satisfy
the plain-error test); United States v. Massenburg, 564 F.3d
337, 342 (4th Cir. 2009). To establish plain error, Gamble
“must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.” Massenburg, 564 F.3d
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at 342-43. Even if such error is found, it is within this
court’s discretion to notice the error, and we do so “only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Massenburg, 564 F.3d at
343 (internal quotation marks omitted).
We evaluate a guilty plea based on “the totality of
the circumstances” surrounding the guilty plea. United
States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010). A
properly conducted Rule 11 colloquy creates a “strong
presumption” that a plea of guilty was taken appropriately and
is “final and binding.” United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). “Solemn declarations in open
court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics
is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977).
Here, Gamble has not identified any defect in the Rule
11 hearing. While under oath, Gamble stated that his guilty
plea was not the product of threats, force, or coercion.
Although Gamble asserts that he did not understand his guilty
plea would result in a five-year consecutive sentence for Count
Four, the district specifically advised him of this fact. We
therefore conclude that Gamble’s allegation that his attorney
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coerced him into pleading guilty is incredible in the face of
the record. The totality of the circumstances establishes that
his guilty plea was knowingly and voluntarily entered.
Next, Gamble argues that the district court committed
procedural error in sentencing him because it failed to consider
its authority to impose a variance sentence and failed to make
an individualized assessment.
We review a sentence for reasonableness, applying a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). A district court commits
procedural error when it “treat[s] the guidelines as mandatory,”
id., or “‘fail[s] to adequately explain the chosen sentence.’”
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010)
(quoting Gall, 552 U.S. at 51). While district judges must
provide in each case a particularized assessment explaining why
the sentence imposed is proper, they need not “robotically tick
through [18 U.S.C.] § 3553(a)’s [(2006)] every subsection.”
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).
Moreover, “when a judge decides simply to apply the Guidelines
to a particular case, doing so will not necessarily require
lengthy explanation.” Rita v. United States, 551 U.S. 338, 356
(2007).
Here, Gamble asked the district court to take his
efforts to turn his life around into account, but he did not
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request any particular sentence. Consequently, we review for
plain error Gamble’s claim that the district court committed
procedural error in failing to recognize its authority to impose
a variance sentence. Lynn, 592 F.3d at 577. Gamble argues the
district court misunderstood its authority to impose a variance
statement based on the court’s statement: “I’m going to give you
under the guidelines the lowest sentence I can give you.”
Because there were no objections to the presentence report and
no request for a sentence outside the Guidelines range, we
conclude that the court’s statement reflects its assessment of
an appropriate sentence in light of an apparent agreement that
Gamble’s sentence should be within the Guidelines range.
We conclude that the district court adequately
discharged its responsibility to explain the sentence imposed
with sufficient detail to allow for meaningful appellate review.
See Rita, 551 U.S. at 359. Gamble never requested a sentence
outside his Guidelines range and the only argument he presented
to the court at sentencing concerned his family life, his lack
of criminal history, and his efforts to turn his life around.
The district court credited Gamble’s efforts, stating, “I am
impressed that you are doing everything you can now to turn your
life around.” Accordingly, “the record makes clear that the
sentencing judge considered the evidence and arguments,” id.,and concluded a sentence at the bottom of the Guidelines range
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was proper. Id. at 357 (“Circumstances may well make clear that
the judge rests his decision upon the Commission’s own reasoning
that the Guidelines sentence is a proper sentence.”); United
States v. Hernandez, 603 F.3d 267, 271 (4th Cir. 2010).
We affirm the district court’s judgment. 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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