UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VANCE HICKS, a/k/a 19, a/k/a Jeffrey Gordon,
a/k/a John Williams,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:04-cr-00626-DCN-1)
Submitted: March 7, 2007 Decided: April 30, 2007
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Alston
Calhoun Badger, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vance Hicks appeals his conviction and the 384-month
sentence imposed after he pled guilty to conspiracy to possess with
intent to distribute and to distribute five kilograms or more of
cocaine and 25,000 pills or more of ecstasy, in violation of 21
U.S.C. § 846 (2000). Hicks’ counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising numerous issues
challenging Hicks’ conviction and sentence but stating that, in his
view, there are no meritorious issues for appeal. Hicks has filed
a pro se supplemental brief.* Finding no reversible error, we
affirm.
Counsel first questions whether the district court
impermissibly participated in plea negotiations by providing a copy
of Hicks’ co-defendant’s presentence report to Hicks when he
objected to the amount of drugs proffered by the Government to
establish a factual basis for the plea during the hearing conducted
pursuant to Fed. R. Crim. P. 11. Because Hicks moved to withdraw
his plea on the ground that the court participated in plea
negotiations, our review is for harmless error. See United
States v. Bradley, 455 F.3d 453, 461 (4th Cir. 2006) (stating
standard of review).
*
We have considered the claims raised in Hicks’ pro se
supplemental brief and find them to be without merit.
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Rule 11(c)(1) of the Federal Rules of Criminal Procedure
“governs guilty pleas and clearly prohibits a court from
participating in plea negotiations.” Id. at 460. Hicks and the
Government had reached a plea agreement five days before the
hearing at which the district court gave counsel a copy of the
co-defendant’s presentence report, and Hicks admitted that he
already had the information contained in the report. Our review of
the record in this case leads us to conclude that the district
court’s actions did not violate Rule 11. See United States v.
Cannady, 283 F.3d 641, 644 (4th Cir. 2002) (holding that district
court did not violate Rule 11(c)(1) where court’s comments were
made after “the parties had reached a definite agreement that had
been reduced to writing and executed by [the defendant] and the
government, all without any direct involvement by the district
judge”).
Next, counsel raises as a potential issue the adequacy of
the plea colloquy in light of the district court’s failure to
explain explicitly that Hicks could persist in his plea of not
guilty, as required by Fed. R. Crim. P. 11(b)(1)(B). Because Hicks
did not move in the district court to withdraw his guilty plea on
this ground, any error in the Rule 11 hearing is reviewed for plain
error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir.
2002) (discussing standard of review). We have carefully reviewed
the record and conclude that the district court’s omission did not
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affect Hicks’ substantial rights. See United States v. Goins, 51
F.3d 400, 402-03 (4th Cir. 1995) (discussing factors courts should
consider in determining whether substantial rights affected in
decision to plead guilty).
Counsel also challenges the district court’s denial of
Hicks’ motion to withdraw the plea. Withdrawal of a guilty plea is
not a matter of right. United States v. Ubakanma, 215 F.3d 421,
424 (4th Cir. 2000). The defendant bears the burden of showing a
“fair and just reason” for the withdrawal of his guilty plea. Fed.
R. Crim. P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one
that essentially challenges . . . the fairness of the Rule 11
proceeding . . . .” United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992) (en banc). Here, the district court applied the
factors set forth in Ubakanma, and we find no abuse of discretion
in the district court’s decision to deny Hicks’ motion to withdraw.
See 215 F.3d at 424 (stating standard of review).
Turning to the district court’s denial of Hicks’ motion
to recuse the district court, counsel asserts that the district
court should have recused itself because it provided a copy of
Hicks’ co-defendant’s presentence report to the defense during the
plea colloquy. We find, however, that a “reasonable, well-informed
observer who assesses all the facts and circumstances” would not
find that the district court was biased. See United States v.
DeTemple, 162 F.3d 279, 286 (4th Cir. 1998) (internal quotation
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marks and citation omitted). Thus, we find no abuse of discretion
in the district court’s denial of relief. See United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (stating standard of
review).
Finally, counsel questions whether the district court
erred by enhancing Hicks’ offense level for possession of a weapon
under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2004), and
by refusing to adjust the offense level for acceptance of
responsibility under USSG § 3E1.1. After United States v. Booker,
543 U.S. 220 (2005), a district court is no longer bound by the
range prescribed by the sentencing guidelines. United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However, in imposing a
sentence post-Booker, courts still must calculate the applicable
guideline range after making the appropriate findings of fact and
consider the range in conjunction with other relevant factors under
the guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
United States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert.
denied, 126 S. Ct. 2054 (2006). This court will affirm a
post-Booker sentence if it “is within the statutorily prescribed
range and is reasonable.” Id. at 433 (internal quotation marks and
citation omitted). “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
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Our review of the record convinces us that the district
court did not clearly err in applying the weapon enhancement or in
refusing to adjust the offense level for acceptance of
responsibility. See United States v. McAllister, 272 F.3d 228, 234
(4th Cir. 2001) (weapon enhancement); United States v. Ruhe, 191
F.3d 376, 388 (4th Cir. 1999) (acceptance of responsibility). The
district court therefore properly calculated the advisory
sentencing guideline range and sentenced Hicks after considering
and examining the guidelines and the § 3553(a) factors, as
instructed by Booker. In addition, Hicks’ 384-month sentence is
well within the maximum sentence of life imprisonment. See 21
U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2006). Finally, neither
Hicks nor the record suggests any information so compelling as to
rebut the presumption that a sentence within the properly
calculated guideline range is reasonable. We therefore conclude
that the sentence is reasonable.
In accordance with Anders, we have reviewed the record
for any meritorious issues and have found none. Therefore, we
affirm Hicks’ 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
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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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