United States v. Oxendine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4800
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK ANTHONY OXENDINE,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00339-WO-1)
Submitted: March 25, 2010 Decided: April 12, 2010
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Milton B. Shoaf, Jr., Salisbury, North Carolina, for Appellant.
Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Anthony Oxendine pled guilty pursuant to a
plea agreement to possession with intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (2006),
and was sentenced to 180 months in prison. Counsel has filed a
brief in accordance with Anders v. California, 386 U.S. 738(1967), stating that after a review of the record, he has found
no meritorious issues for appeal. The Anders brief nonetheless
suggests that the district court erred when it classified
Oxendine as a career offender based on his prior North Carolina
convictions for felony robbery with a dangerous weapon.
Oxendine filed a pro se supplemental brief raising the same
issue, and the Government declined to file a responsive brief.
Finding no error, we affirm.
In the absence of a motion to withdraw a guilty plea,
we review the adequacy of the guilty plea pursuant to Fed. R.
Crim. P. 11 for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). A review of Oxendine’s Rule
11 hearing reveals that the district court complied with Rule
11’s requirements. Oxendine’s plea was knowingly, voluntarily,
and intelligently made, with full knowledge of the consequences
attendant to his guilty plea. We therefore find that no plain
error occurred and affirm Oxendine’s conviction.
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We also affirm Oxendine’s sentence. Based on his
career offender status, Oxendine’s presentence investigation
report properly placed him in criminal history category VI and
attributed him with a total offense level of thirty-four,
yielding a Guidelines range of 262-327 months. At sentencing,
the district court granted the Government’s U.S. Sentencing
Guidelines Manual (“USSG”) § 5K1.1 (2008) motion, appropriately
heard counsel’s argument regarding the weight that should be
afforded the 18 U.S.C. § 3553(a) (2006) factors, allowed
Oxendine an opportunity to allocute, and thoroughly considered
the Guidelines and the § 3553(a) factors before imposing
Oxendine’s 180-month variant sentence. We find that the
district court adequately explained its rationale for imposing
Oxendine’s variant sentence, the sentence was selected pursuant
to a reasoned process in accordance with law, and the reasons
relied upon by the district court are plausible and justify the
sentence imposed. See United States v. Pauley, 511 F.3d 468,
473-76 (4th Cir. 2007); see also United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009) (recognizing that the district
court must “place on the record an individualized assessment
based on the particular facts of the case before it” and that
the “individualized assessment . . . must provide a rationale
tailored to the particular case at hand and [be] adequate to
permit meaningful appellate review”).
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We reject Oxendine’s argument that he should not have
been classified as a career offender because his two North
Carolina felony robbery with a dangerous weapon convictions were
consolidated for judgment. When Oxendine was arrested in 2000
for felony robbery with a dangerous weapon, charges were already
pending against him for his 1998 felony robbery with a dangerous
weapon offense. Although the state court consolidated the cases
for judgment and sentencing in 2001, we find that the district
court properly considered Oxendine’s previous convictions to be
“two prior felony convictions,” as defined by USSG § 4B1.2(c)
(2008). See United States v. Huggins, 191 F.3d 532, 539
(4th Cir. 1999) (holding that despite consolidated sentences,
“[b]ecause there was an intervening arrest, Huggins cannot avoid
classification as a career offender by arguing that his offenses
were related”).
In accordance with Anders, we have reviewed the 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 Oxendine, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Oxendine 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
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was served on Oxendine. 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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