UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4915
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANDINGO L. HAYWOOD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00124-HEH)
Submitted: April 22, 2008 Decided: May 6, 2008
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles D. Lewis, HICKS TYMAS, LLC, Richmond, Virginia, for
Appellant. Angela Mastandrea-Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mandingo L. Haywood pleaded guilty to possession with
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841 (a)(1) (2000). Prior to sentencing,
Haywood filed a motion to continue the sentencing hearing,
scheduled for August 27, 2007, to a date after November 1, 2007, to
enable him to take advantage of the Sentencing Commission’s
proposed amendments to the crack cocaine Sentencing Guidelines.*
The district court denied the motion, concluding “there is ample
latitude within the present Guidelines range to factor the proposed
Guidelines reduction into the sentencing process.” The court
imposed a sentence of 137 months, the high end of the advisory
Guidelines range, noting Haywood’s numerous prior convictions,
apparent disrespect for the law, and the need to protect the
community. Haywood timely appealed.
Haywood’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Counsel states that
there are no meritorious grounds for appeal, but questions whether
the district court erred in denying Haywood’s motion for a
continuance of the sentencing hearing. Haywood was advised of the
*
In May 2007, the Sentencing Commission submitted to Congress
amendments to the Guidelines that, absent congressional action,
would become effective on November 1, 2007. The amendments adjust
downward the base offense level assigned to each threshold quantity
of crack cocaine. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2D1.1 (2007) (Amendment 706); USSG § 1B1.10(c) (Mar. 3, 2008).
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right to file a pro se brief, but has not done so. We affirm
Haywood’s conviction and sentence.
Although counsel did not raise any argument with respect
to the plea colloquy, we find that there were several omissions
during Haywood’s plea hearing. Specifically, the district court
did not advise Haywood about the penalties for perjury if he
testified falsely under oath, as required by Fed. R. Crim. P.
11(b)(1)(A), his right to plead not guilty, as required by Rule
(b)(1)(B), his right to counsel at trial and every stage of the
proceedings, as required by Rule 11(b)(1)(D), or his right to
compel the attendance of witnesses, as required by Rule
11(b)(1)(E). However, we find that the omissions did not affect
Haywood’s substantial rights and therefore did not amount to plain
error. United States v. Olano, 507 U.S. 725, 731-32 (1993)
(stating plain error standard).
We review Haywood’s challenge to the district court’s
refusal to grant a continuance for abuse of discretion. Morris v.
Slappy, 461 U.S. 1, 11-12 (1983); United States v. Speed, 53 F.3d
643, 644 (4th Cir. 1995). To prevail on such a claim, the
defendant must show that the denial “was arbitrary and that it
substantially impaired the defendant’s opportunity to secure a fair
sentence .... ” Speed, 53 F.3d at 644.
The proposed amendments were not in effect at the time of
Haywood’s motion. Moreover, because the crack cocaine amendments
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are retroactive, see USSG § 1B1.10(c) (Mar. 3, 2008), Haywood may
file a motion in the district court to modify his sentence in
consideration of the amendments pursuant to 18 U.S.C. § 3582(c)(2)
(2000). See United States v. Brewer, __ F.3d __, __, 2008, WL
733395, at *5 (4th Cir. Mar. 20, 2008). We conclude the district
court’s ruling was, therefore, not arbitrary or unreasonable, nor
did it impair Haywood’s ability to secure a fair sentence. We
accordingly conclude the district court did not abuse its
discretion by denying Haywood’s motion to continue the sentencing
hearing.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious issues
for appeal. We therefore affirm Haywood’s conviction and sentence.
This court requires that counsel inform Haywood, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Haywood 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 Haywood.
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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