United States v. Fletcher McIntyre , 533 F. App'x 307 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4974
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FLETCHER JUNIOR MCINTYRE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:11-cr-00419-WO-2)
Submitted: July 11, 2013 Decided: July 18, 2013
Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Clifton Thomas Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fletcher Junior McIntyre pled guilty pursuant to a
plea agreement to conspiracy to distribute cocaine and cocaine
base, in violation of 21 U.S.C.A. § 841(b)(1)(B) (West 2006 &
Supp. 2013) and 21 U.S.C. § 846 (2006). The district court
calculated McIntyre’s Guidelines range under the U.S. Sentencing
Guidelines Manual (2011) at sixty to seventy-one months’
imprisonment and sentenced him to sixty 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 McIntyre’s guilty
plea and abused its discretion in imposing sentence. McIntyre
was informed of his right to file a pro se supplemental brief,
but he has not done so. The Government declined to file a
brief. We affirm.
Because McIntyre 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
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establish that a plain error affected his substantial rights by
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 transcripts of the guilty plea and
sentencing hearings leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
McIntyre’s guilty plea and that the court’s omission did not
affect McIntyre’s substantial rights. Critically, the
transcripts reveal that the district ensured the plea was
supported by an independent basis in fact and that McIntyre
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 McIntyre’s guilty
plea.
Turning to McIntyre’s 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
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opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2006) factors, selected a sentence based on
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 calculated
and considered the advisory Guidelines range and heard argument
from counsel and allocution from McIntyre. The court explained
that the within-Guideline sentence of sixty months’ imprisonment
was warranted in light of the nature and circumstances of
McIntyre’s offense and his history and characteristics. Neither
counsel nor McIntyre offers any grounds to rebut the presumption
on appeal that his within-Guidelines sentence is substantively
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reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing McIntyre.
Finally, 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 McIntyre, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McIntyre 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 McIntyre.
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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