UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
REMARIO REVONTE AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:05-cr-00815-HMH-9)
Submitted: November 15, 2007 Decided: November 21, 2007
Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. Regan Alexandra Pendleton, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Remario Revonte Austin pled guilty pursuant to a plea
agreement to conspiracy to possess with intent to distribute five
kilograms or more of cocaine and fifty or more grams of cocaine
base in violation of 21 U.S.C. §§ 841, 846 (2000), and was
sentenced to seventy-eight months in prison. Counsel for Austin
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), alleging that he has found no meritorious issues for
appeal, but asserting that the district court should have reduced
Austin’s Guidelines range by three for acceptance of responsibility
pursuant to U.S. Sentencing Guidelines (“USSG”) § 3B1.1(b) (2005),
despite his post-plea arrest for unrelated drug activity. Austin
has filed a pro se supplemental brief summarily claiming that a
federal officer inappropriately arranged for the post-plea state
arrest. The Government has declined to file a responding brief.
Finding no error, we affirm the district court’s judgment.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. After a Fed. R. Crim. P. 11 hearing at which Austin
admitted his guilt,* the district court adopted the findings
*
Although it was error for the district court not to discuss
the particular portions of Austin’s plea agreement during the Rule
11 colloquy, and this error was plain, we conclude the error did
not affect Austin’s substantial rights. See United States
v. Olano, 507 U.S. 725, 731-32, 734 (1993); United States
v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).
- 2 -
contained in the presentence investigation report without
objection, considered the 18 U.S.C. § 3553(a) (2000) factors, and
sentenced Austin to the low end of a properly calculated Guidelines
range. See United States v. Green, 436 F.3d 449, 455-56 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). Moreover, it was not
error for the district court to refuse to apply a three-point
reduction to Austin’s Guidelines range because the Guidelines’
commentary explicitly provides that a district court may consider
whether the defendant withdrew from criminal conduct when
determining whether to apply the three-point reduction for
acceptance of responsibility. See USSG § 3E1.1 cmt. n.1(b) (2005);
see also United States v. Dugger, 485 F.3d 236, 240 (4th Cir. 2007)
(“The decision to grant an acceptance-of-responsibility reduction
often depends on the actions of the defendant following his or her
arrest or plea.”).
Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Austin in writing
of his right to petition the Supreme Court for further review. If
Austin requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may motion this
court for leave to withdraw from representation. Counsel's motion
must state that a copy thereof was served on Austin. We dispense
with oral argument because the facts and legal contentions are
- 3 -
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 4 -