UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4615
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHERWOOD FARROW,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:05-cr-00078-gec-1)
Submitted: December 21, 2006 Decided: December 29, 2006
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
I. D. Walton Caudill, Roanoke, Virginia, for Appellant. Edward
Albert Lustig, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sherwood Farrow pled guilty to two counts of a fourteen-
count indictment to conspiracy to possess with the intent to
distribute fifty grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2000) (Count 1), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e) (2000)
(Count 9). The district court sentenced Farrow to 262 months’
imprisonment on each count, to be served concurrently, five years
of supervised release, and ordered payment of a $2000 fine and a
$200 statutory assessment.1 Farrow’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal, but questioning
whether the district court complied with the requirements of Fed.
R. Crim. P. 11 in accepting Farrow’s plea, and whether the sentence
1
Farrow stipulated in his plea agreement and at sentencing
that he qualified as an armed career criminal, based on two prior
violent felony convictions. The probation officer calculated an
advisory sentencing guideline range for Farrow of 262 to 327
months’ imprisonment founded on an offense level of 34 and a
criminal history category of VI. After careful consideration of
the facts and evidence, the district court made all the factual
findings appropriate for that determination, and considered the
advisory sentencing range along with the other factors described in
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), prior to imposing
sentence.
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imposed was reasonable.2 Farrow was given an opportunity to file
a pro se brief, but has failed to do so.
Farrow did not move in the district court to withdraw his
guilty plea, therefore 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). We have carefully
reviewed the transcript of the Rule 11 hearing and find no plain
error in the district court’s acceptance of Farrow’s guilty plea.
See United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
We find that the district court properly “consult[ed the]
Guidelines and [took] them into account when sentencing,” United
States v. Booker, 543 U.S. 220, ___, 125 S. Ct. 738, 767 (2005),
that it made all the factual findings appropriate for that
determination, considered the sentencing range along with the other
factors described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2005), and imposed a sentence that was “within the statutorily
prescribed range and . . . reasonable.” United States v. Hughes,
401 F.3d 540, 546-47 (4th Cir. 2005); see also United States v.
2
The plea agreement contained a provision in which Farrow
agreed to waive his right to contest his conviction and sentence
either on appeal or in a 28 U.S.C. § 2255 (2000) motion, except for
certain claims of ineffective assistance of counsel or
prosecutorial misconduct not asserted or evident here. However,
the Government has not asserted the waiver provision precludes
review of Farrow’s conviction or sentence on appeal. Thus, we
decline to enforce the appellate waiver. See United States v.
Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United States v.
Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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Green, 436 F.3d 449, 456-57 (4th Cir.), cert. denied, 126 S. Ct.
2309 (2006) (finding that a sentence within a properly calculated
advisory range to be presumptively reasonable). Here, the district
court’s sentence was predicated on Farrow’s stipulations in his
plea agreement that he was responsible for a drug weight of more
than fifty grams, but less than 150 grams, of cocaine base, and
that he qualified as a career offender based on two prior
convictions for violent felonies under U.S. Sentencing Guidelines
Manual, § 4B1.1 (2005). Given these facts, we find to be
reasonable the district court’s sentence at the low end of a
properly calculated advisory guidelines range.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Farrow’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.
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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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United States v. Farrow
Combined Opinion