UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRENT GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (5:05-cr-01156-MBS-1)
Submitted: March 25, 2009 Decided: April 10, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth M. Mathews, Columbia, South Carolina, for Appellant.
Mark C. Moore, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brent Gardner pled guilty pursuant to a written plea
agreement * to one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006), and was sentenced to 235 months in prison. Gardner
timely appealed.
Counsel for Gardner filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious grounds for appeal, but questioning whether
the district court properly conducted Gardner’s guilty plea
hearing and denied a reduction in sentence for acceptance of
responsibility. Gardner filed a pro se brief raising two
issues. Finding no reversible error, we affirm.
In the absence of a motion to withdraw a guilty plea
in the district court, we review for plain error the adequacy of
the guilty plea proceeding under Fed. R. Crim. P. 11. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our
examination of the record shows that the district court fully
complied with the requirements of Rule 11. Gardner’s plea was
*
Gardner’s plea agreement contained a waiver of appellate
rights. However, because the Government does not invoke the
waiver, we decline to enforce it. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders
brief is filed, “the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review”).
2
knowingly, voluntarily and intelligently entered, and supported
by a factual basis. We therefore find no error, let alone plain
error.
Gardner next contends the district court erred when it
refused to deduct three levels from his guidelines calculation
for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1 (2007). As a condition of his plea
agreement, Gardner agreed to provide full, complete, and
truthful information about all unlawful activities. However,
Gardner failed to give the Government truthful information and
failed a polygraph test concerning relevant conduct. In view of
Gardner’s untruthfulness, the district court did not err when it
refused to reduce his offense level for acceptance of
responsibility. See USSG § 3E1.1 cmt. 1(a) (“In determining
whether a defendant qualifies [for the reduction], appropriate
considerations include . . . truthfully admitting or not falsely
denying any . . . relevant conduct . . . .”).
Finally, we have reviewed Gardner’s pro se
supplemental brief and find the issues raised therein to lack
merit. In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Gardner, in writing, of the right
to petition the Supreme Court of the United States for further
3
review. If Gardner 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 Gardner.
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
4