UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4796
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHENARD RECARDO MCDANIELS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(CR-04-895)
Submitted: January 26, 2006 Decided: January 30, 2006
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Jonathan Scott Gasser, Acting
United States Attorney, Columbia, South Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:
Shenard Recardo McDaniels pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2000). He was sentenced to forty-six months of imprisonment. On
appeal, his attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising the issues of whether the
district court fully complied with Fed. R. Crim. P. 11 in accepting
McDaniels’ guilty plea and whether his sentence is reasonable.
Although advised of his right to do so, McDaniels has not filed a
supplemental pro se brief.
Because McDaniels 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.’”
Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
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(1936)). Our review of the plea hearing transcript reveals that
the district court conducted a thorough Rule 11 colloquy that
assured McDaniels’ plea was made both knowingly and voluntarily.
See United States v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir.
1991). Accordingly, we find McDaniels’ guilty plea was knowing and
voluntary and properly accepted by the district court.
McDaniels also contends that his sentence is
unreasonable. After the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (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 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), 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.A. § 3553(a).
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, 126 S. Ct. 668 (2005). We find the district court
properly calculated the guideline range and appropriately treated
the guidelines as advisory. The court sentenced McDaniels only
after considering and examining the sentencing guidelines and the
factors set forth in § 3553(a). The court also clearly stated that
it deemed the sentence “appropriate” under the circumstances.
Based on these factors, and because the court sentenced McDaniels
within the applicable guideline range and the statutory maximum, we
find that McDaniels’ sentence of forty-six 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 McDaniels’ 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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