United States v. Morton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4302

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY LEE MORTON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-790)

Submitted: November 28, 2005 Decided: December 30, 2005

Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Arthur Bradley Parham,
OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Gary Lee Morton pled guilty to conspiracy to traffic in

and use unauthorized access devices to obtain money, goods, and

services valued at over $1000, in violation of 18 U.S.C. § 371

(2000). He was sentenced to forty-three 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 Morton’s

guilty plea, and whether his sentence was reasonable. Although

advised of his right to do so, Morton has not filed a supplemental

pro se brief.

Because Morton 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)). Our review of the plea hearing transcript reveals that

the district court conducted a thorough Rule 11 colloquy that

assured Morton’s plea was made both knowingly and voluntarily. See

United States v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991).

Accordingly, we find Morton’s guilty plea was knowing and voluntary

and properly accepted by the district court.

Morton also contends that his sentence was unreasonable.

After the Supreme Court’s decision in United States v. Booker, 125

S. Ct. 738 (2005), a sentencing court is no longer bound by the

range prescribed by the sentencing guidelines. See United

States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting

after Booker, sentencing courts should determine the sentencing

range under the guidelines, consider the other factors under

§ 3553(a), and impose a reasonable sentence within the statutory

maximum). However, in determining a sentence post-Booker,

sentencing courts are still required to calculate and consider the

guideline range prescribed thereby as well as the factors set forth

in 18 U.S.C. § 3553(a) (2000). Id.

As stated in Hughes, this court will affirm a post-Booker

sentence if it is both reasonable and within the statutorily

prescribed range. Id. at 546-47. This court has further stated

that “while we believe that the appropriate circumstances for

imposing a sentence outside the guideline range will depend on the

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facts of individual cases, we have no reason to doubt that most

sentences will continue to fall within the applicable guideline

range.” United States v. White, 405 F.3d 208, 219 (4th Cir.),

cert. denied, 74 U.S.L.W. 3302 (U.S. Nov. 14, 2005) (No. 05-6981).

We find the district court properly calculated the guideline range

and appropriately treated the guidelines as advisory. The court

sentenced Morton only after considering and examining the

sentencing guidelines and the factors set forth in § 3553(a). The

court also clearly articulated its rationale for the sentence

imposed. Based on these factors, and because the court sentenced

Morton within the applicable guideline range and the statutory

maximum, we find that Morton’s sentence of forty-three months of

imprisonment is reasonable.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

Accordingly, we affirm Morton’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 presented in the

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materials before the court and argument would not aid the

decisional process.

AFFIRMED

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