UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIKEITA YVETTE MCGRIER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00085-JAB-1)
Submitted: April 16, 2009 Decided: April 20, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH AND FISCHER, Winston-Salem, North
Carolina, for Appellant. Robert Michael Hamilton, Angela Hewlett
Miller, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Likeita Yvette McGrier pled guilty to one count of
bank fraud, 18 U.S.C. § 1344(2) (2006), and one count of
aggravated identity theft, 18 U.S.C. § 1028A(a)(1) (2006). She
was sentenced to eighteen months on the first count and a
consecutive twenty-four months on the second count, for a total
of forty-two months’ imprisonment. McGrier’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his view, there are no meritorious issues for
appeal, but questioning whether (1) the indictment was
defective; (2) McGrier’s plea was knowing and voluntary; and
(3) the district court erred in sentencing McGrier. Finding no
error, we affirm.
Because McGrier did not move in the district court to
withdraw her guilty plea, we review the propriety of the Fed. R.
Crim. P. 11 hearing for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). Before accepting a plea, the
district court must ensure that the defendant understands the
nature of the charges against her, the mandatory minimum and
maximum sentences, and various other rights, so it is clear the
defendant is knowingly and voluntarily entering her plea. The
court also must determine whether there is a factual basis for
the plea. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991). Our review of the plea hearing
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transcript reveals that the district court conducted a thorough
Rule 11 colloquy, ensuring that McGrier’s plea was knowing and
voluntary, and that there was an independent factual basis for
the plea. To the extent McGrier challenges the indictment,
defects in an indictment are not jurisdictional, United
States v. Cotton, 535 U.S. 625, 631 (2002), and McGrier’s valid
guilty plea waived this alleged 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).
We review a criminal sentence for reasonableness,
using the abuse of discretion standard. Gall v. United States,
128 S. Ct. 586, 594-97 (2007). We conclude that McGrier’s
sentence is both procedurally and substantively reasonable. In
this regard, we note that the district court properly calculated
McGrier’s Guidelines range, treated the Guidelines as advisory,
and considered the applicable 18 U.S.C. § 3553(a) (2006)
factors. See United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007); see also Rita v. United States, 127 S. Ct. 2456,
2462-69 (2007) (upholding application of rebuttable presumption
of correctness of within-guideline sentence).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
In her pro se supplemental brief, McGrier argues that it was her
understanding that she would be serving concurrent sentences.
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We find this assertion belied by the plea agreement and her
statements at the Rule 11 hearing. We therefore affirm
McGrier’s convictions and sentence. This court requires that
counsel inform McGrier, in writing, of her right to petition the
Supreme Court of the United States for further review. If
McGrier 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
McGrier. 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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