UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ALLEN HAWKINS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-649-TLW)
Submitted: August 24, 2005 Decided: October 11, 2005
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Allen Hawkins, Jr. appeals his conviction and
fifty-four month sentence imposed after he pled guilty to being in
knowing possession of a firearm after having been convicted of a
crime punishable by more than one year in prison, in violation of
18 U.S.C. § 922(g)(1) (2000). On appeal, Hawkins’ counsel filed an
Anders* brief, stating that there were no meritorious issues, but
raising the following issues: (1) whether the district court
complied with Fed. R. Crim. P. 11 in accepting Hawkins’ guilty
plea; and (2) whether Hawkins’ federal guidelines sentence was
plainly erroneous in light of the Supreme Court’s decision in
United States v. Booker, 125 S. Ct. 738 (2005). Hawkins was
advised of his right to file a pro se supplemental brief, but did
not respond. The Government adopted counsel’s Anders brief and
elected not to file a separate brief. We affirm.
Under Fed. R. Crim. P. 11(b)(1), the district court must
address the defendant in open court and inform him of the
following: the nature of the charge; any mandatory minimum
sentence and the maximum possible sentence; the applicability of
the sentencing guidelines; the defendant's right to an attorney;
his right to be tried by a jury with the assistance of counsel; his
right to confront and cross-examine witnesses; and his right
against self-incrimination. He also must be told that a guilty
*
Anders v. California, 386 U.S. 738, 744 (1967).
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plea waives any further trial and that his answers at the
proceeding may be used against him in a prosecution for perjury.
The court must determine that the defendant understands the terms
of any waiver of appeal provision in the plea agreement. Under
Rule 11(b)(2), the court must address the defendant to determine
that the plea is voluntary. The court must require disclosure of
any plea agreement under Rule 11(c)(2), and determine a factual
basis for the plea under Rule 11(b)(3). Based on our review of the
record, we find that the district court complied with Rule 11 and
that the court ensured that Hawkins’ plea was knowing and
voluntary.
To the extent Hawkins claims the district court erred by
sentencing him under then-mandatory guidelines, because he did not
object below to the application of the sentencing guidelines,
appellate review is for plain error. United States v. White, 405
F.3d 208, 215 (4th Cir. 2005). To demonstrate plain error, a
defendant must establish that error occurred, that it was plain,
and that it affected his substantial rights. Id. (citing United
States v. Olano, 507 U.S. 725, 732 (1993)). If a defendant
establishes these requirements, the court has discretion to correct
the error, but “should not exercise . . . [that discretion] unless
the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks
and citation omitted).
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In White, this court determined that imposing a sentence
under the guidelines as mandatory was error that was plain. White,
405 F.3d at 217. In determining whether an error affected the
defendant’s substantial rights, the court reasoned that “the error
of sentencing a defendant under a mandatory guidelines regime” was
not an error for which prejudice would be presumed. Id. at 221.
Rather, the defendant bears the burden of showing that this error
“affected the outcome of the district court proceedings.” Id. at
223 (quoting Olano, 507 U.S. at 734). Hawkins failed to meet this
burden because he presented no non-speculative evidence or argument
demonstrating that he would have received a lower sentence had the
district court appreciated that the guidelines were not mandatory.
Moreover, the district court in this case stated on the record that
if the guidelines were deemed unconstitutional or merely non-
binding, Hawkins’ sentence would be the same. Accordingly, the
district court’s error of sentencing Hawkins under a mandatory
guidelines scheme did not affect Hawkins’ substantial rights.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Hawkins’ sentence. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client 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
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to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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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