UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4402
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS LAMONE BETHEA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-847)
Submitted: October 19, 2005 Decided: November 15, 2005
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Jonathan S. Gasser,
Acting United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Travis Lamone Bethea pled guilty to being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(e) (2000). He
was sentenced to 120 months of imprisonment. On appeal, his
attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising the issue of whether the court fully
complied with Fed. R. Crim. P. 11 in accepting Bethea’s guilty
plea, and whether Bethea was sentenced in violation of Blakely v.
Washington, 542 U.S. 296 (2004). Although advised of his right to
do so, Bethea has not filed a supplemental pro se brief.
Because Bethea did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the Rule
11 hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that “plain
error analysis is the proper standard for review of forfeited error
in the Rule 11 context”). Before a reviewing court may correct a
trial error to which there was no contemporaneous objection, three
factors must be shown: (1) there was error, (2) the error was
plain, and (3) the error affected substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If these three factors
are satisfied, an appellate court should exercise its discretion to
correct the error when the error “‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’”
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Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)).
We have reviewed the record and conclude that the
district court fully complied with Rule 11, with one exception. It
appears the court failed to inform Bethea of the Government’s right
to use his statements made under oath in a prosecution for perjury
or false statement. See Fed. R. Crim. P. 11(b)(1)(A). However,
after a full review of the record, we conclude that this omission
did not “‘seriously affect the fairness, integrity or public
reputation of judicial proceedings.’” Olano, 507 U.S. at 736.
Bethea also maintains that he was sentenced in violation
of his Sixth Amendment right to a jury trial under Blakely.
Because Bethea did not raise this issue in the district court, we
review for plain error. See United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005). In United States v. Booker, 125 S. Ct. 738
(2005), the Supreme Court extended the holding of Blakely and held
that the mandatory manner in which the federal sentencing
guidelines required courts to impose sentencing enhancements based
on facts found by the court by a preponderance of the evidence
violated the Sixth Amendment. 125 S. Ct. at 746, 750 (Stevens, J.,
opinion of the Court). The Court remedied the constitutional
violation by making the Guidelines advisory through the removal of
two statutory provisions that had rendered them mandatory. Id. at
746 (Stevens, J., opinion of the Court); id. at 756-67 (Breyer, J.,
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opinion of the Court). In this case, Bethea negotiated a 120-month
sentence in exchange for the Government’s dismissal of count two of
the indictment. Because Bethea stipulated to a particular
sentence, and received that exact sentence, we find that
resentencing is not warranted. Cf. United States v. Silva, 413
F.3d 1283, 1284 (10th Cir. 2005) (holding that the district court
did not commit Booker error in sentencing the defendant to the
specific sentence bargained for in the plea agreement); United
States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) (stating
“[a] sentence imposed under a Rule 11(c)(1)(C) plea arises directly
from the agreement itself, not from the Guidelines,” and,
therefore, “[a]s Booker is concerned with sentences arising under
the Guidelines, it is inapplicable in this [Rule 11(c)(1)(C)]
situation.”).
Pursuant to Anders, we have reviewed the record for
reversible error and found none. We therefore affirm Bethea’s
conviction and 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
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
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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