United States v. George Potts, Jr. , 533 F. App'x 248 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4032
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE THOMAS POTTS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00237-TDS-1)
Submitted: July 5, 2013 Decided: July 17, 2013
Before SHEDD, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Jr., First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Kyle David Pousson, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Thomas Potts, Jr., pled guilty pursuant to a
plea agreement to one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2006). The district court determined that Potts was
an armed career criminal, calculated his Guidelines range under
the U.S. Sentencing Guidelines Manual (2011) at 180 to 188
months’ imprisonment, and sentenced him to 180 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court reversibly erred in accepting Potts’ guilty
plea and abused its discretion in imposing sentence. Potts has
filed a pro se supplemental brief. The Government declined to
file a brief. We affirm.
Because Potts did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only. United States v.
Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993).
In the guilty plea context, a defendant meets his burden to
establish that a plain error affected his substantial rights by
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showing a reasonable probability that he would not have pled
guilty but for the Rule 11 omission. United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea
hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Potts’ guilty plea and that the court’s omission did not affect
Potts’ substantial rights. Critically, the transcript reveals
that the district ensured the plea was supported by an
independent basis in fact and that Potts entered the plea
knowingly and voluntarily with an understanding of the
consequences. United States v. DeFusco, 949 F.2d 114, 116, 120
(4th Cir. 1991). Accordingly, we discern no plain error in the
district court’s acceptance of Potts’ guilty plea.
Turning to Potts’ 180-month sentence, we review it for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
Id. at 51. In determining procedural reasonableness, we
consider whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
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clearly erroneous facts, and sufficiently explained the selected
sentence. Id. at 49–51. If the sentence is free of
“significant procedural error,” we review it for substantive
reasonableness, “tak[ing] into account the totality of the
circumstances.” Id. at 51. If the sentence is within the
properly calculated Guidelines range, we apply a presumption on
appeal that the sentence is substantively reasonable.
United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir.
2010). Such a presumption is rebutted only if the defendant
shows “that the sentence is unreasonable when measured against
the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
In this case, the district court correctly determined
that Potts was an armed career criminal, correctly calculated
and considered the advisory Guidelines range, heard argument
from counsel, and gave Potts the opportunity to allocute.
The court explained that the within-Guideline sentence of 180
months’ imprisonment was warranted in light of the nature and
circumstances of Potts’ offense, his history and
characteristics, and the need for the sentence to afford
adequate deterrence to criminal conduct. Neither counsel nor
Potts offers any grounds to rebut the presumption on appeal that
the within-Guidelines sentence is substantively reasonable.
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Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Potts.
Finally, in accordance with Anders, we have reviewed
the issues raised in Potts’ pro se supplemental brief and 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 Potts, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Potts 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 a copy thereof
was served on Potts.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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