United States v. Thompson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4181
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DARNELL THOMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00464-HMH-1)
Submitted: August 19, 2009 Decided: October 8, 2009
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. James D. Galyean, Assistant
United States Attorney, William Jacob Watkins, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darnell Thompson pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2006). The district court sentenced him to the statutory
mandatory minimum sentence of 180 months’ imprisonment. On
appeal, Thompson’s counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). Thompson has also exercised
his right to file a pro se supplemental brief.
In his Anders brief, Thompson first suggests that the
district court failed to comply with Fed. R. Crim. P. 11 in
accepting his guilty plea. This court generally assesses any
variation from the Rule 11 requirements under a harmless error
standard. Fed. R. Crim. P. 11(h). However, because Thompson
did not move in the district court to withdraw his guilty plea,
his claim is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). We have reviewed
the record and determine that the district court fully complied
with the requirements of Rule 11 and did not err in determining
that Thompson’s plea was both knowing and voluntary.
Accordingly, the district court did not err in accepting his
guilty plea.
Thompson next suggests that the district court erred
in sentencing him to the statutory mandatory minimum sentence of
180 months’ imprisonment. This court reviews a sentence imposed
2
by a district court under a deferential abuse of discretion
standard. United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008). In reviewing a sentence, the appellate court must first
ensure that the district court committed no significant
procedural error, such as failing to adequately explain the
chosen sentence. Gall v. United States, 128 S. Ct. 586, 597
(2007). If there are no procedural errors, then the appellate
court considers the substantive reasonableness of the sentence.
Id.“When rendering a sentence, the district court must
make an individualized assessment based on the facts presented.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(quoting Gall, 128 S. Ct. at 597 (internal quotations omitted)
(emphasis in the original)). Accordingly, a sentencing court
must apply the relevant § 3553(a) factors to the particular
facts presented and must “state in open court” the particular
reasons that support its chosen sentence. Id. Stating in open
court the particular reasons for a chosen sentence requires the
district court to set forth enough to satisfy this court that
the district court has a reasoned basis for its decision and has
considered the parties’ arguments. Id.
The district court did not commit error – procedural
or substantive – in sentencing Thompson. The district court
properly determined that Thompson qualified for the Armed Career
3
Criminal enhancement and had a resulting advisory guidelines
range of 180 months’ imprisonment. Prior to imposing sentence,
the district court heard from defense counsel and Thompson and
granted Thompson’s request to self-report to the Bureau of
Prisons. The record reveals no significant procedural error by
the district court in sentencing Thompson. Also, this court
presumes on appeal that a sentence within a properly determined
advisory guidelines range is substantively reasonable and
nothing in the record rebuts that presumption here. See Rita v.
United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2459 (2007);
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Finally, in his pro se supplemental brief, Thompson
raises claims of ineffective assistance of counsel. As the
record does not conclusively establish ineffective assistance,
Thompson’s claims are not cognizable on direct appeal. See
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Thompson’s conviction and sentence. This
court requires that counsel inform Thompson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Thompson 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
4
representation. Counsel’s motion must state that a copy thereof
was served on Thompson.
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
5