United States v. Locketus Marshall

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOCKETUS JAVARUS MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. J. Michelle Childs, District
Judge. (8:11-cr-00339-JMC-8)
Submitted: August 28, 2013 Decided: September 6, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John M. Ervin, III, LAW OFFICES OF JOHN M. ERVIN, III,
Darlington, South Carolina, for Appellant. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Locketus Javarus Marshall pled guilty without a plea
agreement to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 2, 922(g)(1), 924(a)(2), (e) (2006).
At sentencing, the parties agreed to a stipulated sentence of
120 months’ imprisonment, which the district court imposed. On
appeal, Marshall’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal but asking this court to
consider whether the district court fully complied with Fed. R.
Crim. P. 11 in accepting Marshall’s guilty plea and whether his
sentence was reasonable. Although informed of his right to do
so, Marshall has not filed a pro se supplemental brief. The
Government declined to file a response. * We affirm.
Because Marshall did not move to withdraw his guilty
plea in the district court, the adequacy of the Rule 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.
*
The Government has not sought enforcement of the waiver of
appellate rights. See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (recognizing that the Government may
file a responsive brief raising the appellate waiver issue or do
nothing and allow this court to perform the Anders review).
2
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 showing a
reasonable probability that he would not have pled guilty but
for the district court’s Rule 11 omissions. United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). Our thorough
review of the record reveals that the district court fully
complied with Rule 11 in conducting the guilty plea colloquy.
Thus we conclude that Marshall’s guilty plea was knowing and
voluntary and supported by an independent basis in fact, and we
find no error in the district court’s acceptance of his guilty
plea.
Next, we review the 120–month sentence for
reasonableness under a “deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This abuse-of-discretion standard involves two steps; under the
first, we examine the sentence for significant procedural
errors, and under the second, we review the substance of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (examining Gall, 552 U.S. at 50–51). When the district
court imposes a variant sentence, we consider “whether the . . .
court acted reasonably both with respect to its decision to
impose such a sentence and with respect to the extent of the
3
divergence from the sentencing range.” United States v.
Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
We conclude, after a review of the record, that the
district court did not abuse its discretion in imposing the 120-
month sentence. The parties stipulated to this exact sentence,
and Marshall received the benefit of the bargain. Moreover, the
district court adequately considered the 18 U.S.C. § 3553(a)
(2006) factors, and counsel does not suggest ­ and review of the
record does not reveal ­ any basis for concluding that the
sentence is unreasonable.
In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm Marshall’s conviction and sentence. This court
requires that counsel inform Marshall in writing of the right to
petition the Supreme Court of the United States for further
review. If Marshall 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 Marshall. 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
4