United States v. Brown ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4874
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE BROWN, a/k/a Fat Eric,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00179-RDB-4)
Submitted: May 12, 2011 Decided: May 19, 2011
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Arthur S. Cheslock, Baltimore, Maryland, for Appellant. Tonya
Kelly Kowitz, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Andre Brown pled
guilty to possession of a firearm in furtherance of a drug
trafficking crime resulting in death, in violation of 18 U.S.C.
§ 924(j) (2006). The plea agreement included a stipulation of
facts in which the parties agreed that had the case proceeded to
trial, the Government would have proved beyond a reasonable
doubt that Brown and a co-conspirator shot and killed a rival
gang member in fulfillment of a murder contract offered by the
leader of a narcotics-trafficking organization following a drug
turf dispute. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the
parties agreed to a sentencing range of 288 to 360 months of
imprisonment. The court sentenced Brown within the Guidelines
range to 360 months of imprisonment.
On appeal, counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious issues for appeal. Counsel
questions, however, whether a sufficient factual basis supported
Brown’s guilty plea, and whether the court properly applied the
advisory guidelines in sentencing. Brown filed a pro se
supplemental brief also challenging the sufficiency of the
factual basis. The Government declined to file a brief.
Because Brown did not move in the district court to
withdraw his guilty plea, we review his Rule 11 hearing for
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plain error. United States v. Martinez, 277 F.3d 517, 525-26
(4th Cir. 2002). To establish plain error, Brown “must show:
(1) an error was made; (2) the error is plain; and (3) the error
affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009) (reviewing unpreserved Rule 11
error). “The decision to correct the error lies within our
discretion, and we exercise that discretion only if the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks
omitted). Our review of the record reveals no Rule 11 error.
The court ensured that Brown’s guilty plea was knowing and
voluntary and supported by an adequate factual basis. United
States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Therefore, we find no infirmity in Brown’s conviction.
We review Brown’s sentence under a deferential abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to “ensure
that the district court committed no significant procedural
error, such as . . . improperly calculating . . . the Guidelines
range.” United States v. Osborne, 514 F.3d 377, 387 (4th Cir.
2008) (internal quotation marks, citations, and alterations
omitted). We then consider the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. We presume on appeal
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that a sentence within a properly calculated Guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The district court properly calculated the Guidelines
range, and neither party objected to the presentence report.
The district court stated on the record adequate reasons for the
sentence, which was within the Guidelines range of 360 months to
life imprisonment. Consequently, we conclude that Brown’s
sentence is reasonable.
Accordingly, 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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