United States v. Lutz , 204 F. App'x 291 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELLIOTT ALEXANDER LUTZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-473-TLW)
Submitted: September 22, 2006 Decided: October 30, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. William Earl Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Elliott Alexander Lutz appeals his conviction and sixty-
five-month sentence imposed after he pled guilty to possessing a
computer and other materials containing child pornography that had
been shipped or mailed in interstate commerce, in violation of 18
U.S.C.A. § 2252A(a)(5)(B) (West 2000 & Supp. 2006). Lutz’s counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), challenging the adequacy of the plea colloquy and the
reasonableness of Lutz’s sentence but stating that, in his view,
there are no meritorious issues for appeal. Lutz was informed of
his right to file a pro se supplemental brief, but he has not done
so. We affirm.
Counsel questions whether the district court complied
with Fed. R. Crim. P. 11 in accepting Lutz’s guilty plea. Because
Lutz did not move to withdraw his guilty plea in the district
court, we review his challenge to the adequacy of the Rule 11
hearing for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002) (discussing standard). Although the district
court did not inform Lutz of its obligation to impose a $100
special assessment or that the court could impose restitution, we
find that Lutz’s substantial rights were not affected by these
omissions. See United States v. Goins, 51 F.3d 400, 402 (4th Cir.
1995) (discussing factors courts should consider in determining
whether substantial rights affected in decision to plead guilty);
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cf. United States v. Fentress, 792 F.2d 461, 465-66 (4th Cir. 1986)
(finding that district court’s failure to inform defendant of its
authority to order restitution was harmless error where court had
informed defendant that he faced maximum fine in excess of
restitution eventually ordered). We have carefully reviewed the
transcript of the Rule 11 hearing and conclude that the district
court did not err in accepting Lutz’s guilty plea.
Counsel also questions whether the sixty-five-month
sentence imposed by the district court is reasonable. In
sentencing Lutz, the court considered the properly calculated
advisory sentencing guidelines range and the factors set forth in
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006). The sentence
imposed is within the guidelines range and well below the ten-year
statutory maximum set forth in § 2252A(b)(2). Under these
circumstances, we find that Lutz’s sentence is reasonable. See
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (“[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.”).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Lutz’s conviction and sentence. 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
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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 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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