United States v. McDaniel

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4322
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON DEVAUL MCDANIEL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (8:07-cr-00945-GRA-3)
Submitted: November 13, 2008 Decided: November 18, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. William Walter Wilkins, III, United
States Attorney, Columbia, South Carolina, David Calhoun
Stephens, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Devaul McDaniel pled guilty to one count of
conspiracy to possess and transfer with intent to use unlawfully
five or more identification documents, in violation of 18 U.S.C.
§§ 1028(a)(3), 1028(f) (2006) (Count Two), and one count of
conspiracy to possess without lawful authority a means of
identification of another person, in violation of 18 U.S.C.
§ 1028A(a)(1) (2006) (Count Three). The district court
sentenced him to a total of thirty-eight months of imprisonment,
and McDaniel timely appealed.
On appeal, counsel filed an Anders 1 brief, in which she
states there are no meritorious issues for appeal, but questions
whether the district court complied with Fed. R. Crim. P. 11 in
accepting McDaniel’s guilty plea, and whether the sentence is
reasonable. McDaniel was advised of his right to file a pro se
supplemental brief, but has not filed a brief. The Government
declined to file a brief. We affirm.
McDaniel did not move in the district court to
withdraw his guilty plea; therefore this court reviews his
challenge to the adequacy of the Rule 11 hearing for plain
error. See United States v. Bradley, 455 F.3d 453, 461-62 (4th
Cir. 2006). Prior to accepting a guilty plea, the trial court
1
Anders v. California, 386 U.S. 738 (1967).
2
must ensure the defendant understands the nature of the charges
against him, the mandatory minimum and maximum sentences, and
other various rights, so it is clear that the defendant is
knowingly and voluntarily entering his plea. The court must
also determine whether there is a factual basis for the plea.
Fed. R. Crim. P. 11(b)(1), (3); United States v. DeFusco, 949
F.2d 114, 116, 120 (4th Cir. 1991). Counsel does not specify
any deficiencies in the district court’s Rule 11 inquiry, and
our review of the plea hearing transcript reveals that the court
conducted a colloquy that substantially complied with Rule 11
and assured McDaniel’s plea was made both knowingly and
voluntarily.
We review a sentence imposed by the district court for
procedural and substantive reasonableness under an abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007). The court considers the totality of the circumstances
in assessing the substantive reasonableness of a sentence. Id.This court presumes that a sentence imposed within the properly
calculated Guidelines 2 range is reasonable. United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States,
127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-Guidelines sentence). In considering
2
U.S. Sentencing Guidelines Manual (2006).
3
the district court’s application of the Guidelines, this court
reviews factual findings for clear error and legal conclusions
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006).
The district court correctly calculated McDaniel’s
Guidelines range as to Count Two, and imposed a sentence within
that range and within the statutory maximum. The court also
properly imposed the statutorily required twenty-four month
consecutive sentence on Count Three. 28 U.S.C. § 1028A(a)(1).
Our review of the record leads us to conclude that McDaniel’s
sentence is reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm McDaniel’s convictions and sentence. This
court requires that counsel inform McDaniel, in writing, of the
right to petition the Supreme Court of the United States for
further review. If McDaniel 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 McDaniel.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
4
before the court and argument would not aid the decisional
process.
AFFIRMED
5