UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4571
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEONARDO WELLS, a/k/a Lee,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:06-cr-00128-JFM-1)
Submitted: February 20, 2009 Decided: March 16, 2009
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Donald Kaplan, Baltimore, Maryland, for Appellant. James Thomas
Wallner, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In accordance with a plea agreement, Leonardo Wells
pled guilty to conspiracy to distribute 500 grams or more of
cocaine. He was sentenced to 108 months in prison. Wells now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning whether the
indictment was defective and the sentence reasonable but
concluding that there are no meritorious issues for appeal.
Wells has filed a pro se supplemental brief. We affirm.
Wells stipulated in his plea agreement that “it was
reasonably foreseeable to the Defendant . . . that the
conspiracy distributed and possessed with the intent to
distribute 5 kilograms but less than 15 kilograms of cocaine.”
He contends on appeal that the indictment should have
specifically charged him with this amount of the drug.
Defects in an indictment are not jurisdictional.
United States v. Cotton, 535 U.S. 625, 631 (2002). Further,
Wells’ valid guilty plea waived this claimed non-jurisdictional
defect. See Tollett v. Henderson, 411 U.S. 258, 267 (1973);
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).
Wells also claims that his sentence must be vacated
because the district court stated at sentencing that his offense
level was 29. Based on the totality of the record, however, it
is clear that the court simply misspoke. First, the plea
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agreement forecast that Wells’ base offense level would be 32,
two levels would be added based on his role in the offense, and
three levels subtracted based on acceptance of responsibility.
These calculations yield a total offense level of 31. Second, at
the Fed. R. Crim. P. 11 hearing, the district court repeated
these calculations and added that they brought “the guidelines .
. . to a 31.” * Finally, the court stated at sentencing that 108
months was “at the low end” of the guideline range of 108-135
months; had the total offense level been 29, 108 months would
have been the top of the range.
Finally, we conclude that Wells’ sentence was
procedurally and substantively reasonable. He was sentenced
within the statutory range of five to forty years. See 21
U.S.C. § 841(b)(1)(B) (2006). Additionally, his guideline range
was correctly calculated, the guidelines were treated as
advisory, the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, and the court adequately stated its reasons for
imposing sentence. See Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th
Cir. 2007).
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
*
Wells was in criminal history category I.
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meritorious issues for appeal. Accordingly, we affirm. 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, counsel may move in this court for leave to withdraw
from representation. Counsel=s motion must state that a copy of
the motion 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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