UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4750
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DALE HONEYCUTT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00031-LHT-8)
Submitted: July 23, 2009 Decided: March 4, 2010
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dale Honeycutt pled guilty pursuant to a
written plea agreement * to one count of conspiracy to manufacture
and to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and was
sentenced to 168 months in prison. Honeycutt timely appeals.
Counsel for Honeycutt 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 erred in applying a presumption of
reasonableness to the range of imprisonment prescribed by the
guidelines. In addition, Honeycutt has filed a pro se brief.
Finding no reversible error, we affirm.
Honeycutt contends that the district court’s language
at the plea colloquy advising him that “in some circumstances”
the court could impose a sentence that differed from the range
prescribed by the sentencing guidelines indicated that the
district court improperly applied a presumption of
reasonableness to the guidelines sentencing range. Such a
*
Honeycutt’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”).
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presumption may not be applied by the sentencing court. Rita v.
United States, 551 U.S. 338, 351 (2007); see also Nelson v.
United States, 129 S. Ct. 890, 892 (2009); Gall v. United
States, 552 U.S. 38, 50 (2007). We conclude that the phrase
emphasized by counsel, whether considered in isolation or in the
totality of the district court’s statements at the Rule 11 plea
hearing and at sentencing, does not show that the district court
applied a presumption of reasonableness.
We have reviewed Honeycutt’s pro se supplemental brief
and find no merit to his claim. 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
Honeycutt, in writing, of the right to petition the Supreme
Court of the United States for further review. If Honeycutt
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 Honeycutt.
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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