UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHIL JEMAR GRAHAM, a/k/a Touche,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01210-TLW)
Submitted: October 17, 2007 Decided: November 5, 2007
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phil Jemar Graham pled guilty pursuant to a written plea
agreement to one count of conspiracy to possess with intent to
distribute fifty grams or more of cocaine base, in violation of 21
U.S.C. § 846 (2000). The court sentenced Graham to 192 months in
prison, and Graham timely appeal. Graham’s attorney filed a brief
in accordance with Anders v. California, 386 U.S. 739 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether the district court complied with Fed. R. Crim.
P. 11 in accepting Graham’s guilty plea, and whether Graham’s
sentence was unreasonable. The Government did not file a reply
brief, and although advised of his right to do so, Graham did not
file a pro se supplemental brief. Finding no reversible error, we
affirm.
Graham suggests that the district court erred by not
fully complying with Fed. R. Crim P. 11 at the guilty plea hearing.
Contrary to this assertion, the district court meticulously
followed Rule 11 to ensure that Graham fully understood the
significance of his guilty plea and that the plea was knowing and
voluntary. Graham testified that he was of sound mind and was not
under the influence of drugs or alcohol, and the court found him
competent to enter a plea. Graham had discussed his charges and
consulted with his attorney and was satisfied with the services
rendered. Counsel summarized the terms of the plea agreement for
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the court, and Graham agreed that those were its terms. Graham
agreed that the plea agreement represented the entire agreement
between the parties; that no one had made promises to him other
than what was written therein; that no one forced him to plead
guilty; that no one had promised him a particular sentence; that
his sentence would be determined after the presentence report was
completed; that the guidelines were advisory; and that the judge
could sentence him to a punishment more or less severe than the
guidelines range. The court explained relevant conduct, and
informed Graham that he could be held responsible for acts of co-
conspirators and that such conduct could be used to enhance his
sentence. Graham agreed that if his sentence was more severe than
he expected, he was still bound by his plea and would not be
permitted to withdraw it. Graham also agreed that by pleading
guilty, he was indeed guilty of the charges, he admitted the facts
surrounding the charges, he waived any defenses and any defects in
the proceedings, and he was giving up his rights to a jury trial.
The court explained the maximum penalties for each count facing
Graham. The court found Graham’s plea was knowing and voluntary,
and accepted the plea of guilty. The district court fully complied
with its Rule 11 obligations and we conclude this claim is
meritless.
Graham next suggests that the district court erred by
violating the requirements of 18 U.S.C.A. § 3553(a) (West 2000 &
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Supp. 2007) in fashioning a sentence. 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. However, in
imposing a sentence post-Booker, courts still must calculate the
applicable guidelines range after making the appropriate findings
of fact and consider the range in conjunction with other relevant
factors under the guidelines and § 3553(a). 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). “The district court need not discuss each
factor set forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough
to calculate the range accurately and explain why (if the sentence
lies outside it) this defendant deserves more or less.’” Moreland,
437 F.3d at 432 (quoting United States v. Dean, 414 F.3d 725, 729
(7th Cir. 2005)).
Here, the district court sentenced Graham post-Booker and
appropriately treated the guidelines as advisory. The court
sentenced Graham after considering and examining the sentencing
guidelines and the § 3553(a) factors, as instructed by Booker.
Graham’s sentencing guidelines range, to which he did not object,
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was initially calculated using offense level 34 and criminal
history category VI, yielding a guidelines range of 262 to 327
months. He was subject to a statutory minimum term of twenty years
and a statutory maximum of life. 21 U.S.C. §§ 841(b)(l)(B), 851
(2000). The court granted the Government’s motion for a downward
departure, reducing the offense level to 30. The resulting
guidelines range was 168 to 210 months. Graham’s 192-month
sentence fell squarely within that range. The court explained that
it had taken the sentencing guidelines and § 3553(a) factors into
account, and the sentence imposed was based upon Graham’s prior
record and continued involvement in drug activity.
Neither Graham nor the record suggests any information so
compelling as to rebut the presumption that his sentence was
reasonable. Upon review of the record, we conclude that the
sentence was reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Graham’s conviction and sentence. This court
requires that counsel inform Graham, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Graham 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 Graham.
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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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