UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4241
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BERNARD BOSTIC,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-00060-TLW-1)
Submitted: June 2, 2010 Decided: June 17, 2010
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston,
South Carolina, for Appellant. Rose Mary Sheppard Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In January 2008, Bernard Bostic was charged with
numerous offenses, including acts of robbery, in violation of
Title 18 U.S.C. §§ 1951(a) and 2; use and possession of
firearms during and in relation to crimes of violence, in
violation of Title 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(C) and
2; and possession of firearms and ammunition by a convicted
felon, in violation of Title 18 U.S.C. §§ 922(g)(1), 924(a)(2),
and 924(e). Bostic entered into a plea agreement in which he
agreed to plead guilty to Count I of the indictment (robbery of
a Spring Mart gas station in Darlington, South Carolina) and
Count V of the indictment (carrying or possessing a firearm
during and in relation to a robbery of an Exxon gas station in
Timmonsville, South Carolina). The plea agreement contained a
stipulated sentence, pursuant to Fed. R. Crim. P. 11(c)(1)(C),
of twenty-five years’ imprisonment; Bostic and the Government
reserved the right to withdraw from the agreement if the
district court did not sentence Bostic to said term.
At his rearraignment in September 2008, Bostic entered
a guilty plea, pursuant to the terms of his plea agreement,
which the district court accepted. The presentence report set
the advisory guideline range for the two counts to which Bostic
had pleaded guilty at 121-151 months’ imprisonment, plus a
consecutive term of seven years. Neither party objected to the
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presentence report. Pursuant to the terms of Bostic’s plea
bargain, the district court sentenced him to twenty-five years’
imprisonment. Bostic filed a pro se notice of appeal.
Bostic’s counsel has filed a brief with this court
concluding pursuant to Anders v. California, 386318 U.S. 738
(1967), that there are no meritorious issues for appeal.
Counsel questions, however, whether the district court committed
plain error in accepting Bostic’s guilty plea and whether this
court may review the reasonableness of Bostic’s sentence. The
Government has given notice that it will not file a brief, and
that it has adopted counsel’s Anders brief as its own. Bostic
has filed a letter, which we construe as a pro se supplemental
brief.
Bostic first challenges whether his guilty plea was
properly conducted. Prior to accepting a guilty plea, a trial
court, through colloquy with the defendant, must inform the
defendant of, and determine that the defendant understands the
nature of, the charges to which the plea is offered, any
mandatory minimum penalty, the maximum possible penalty he
faces, and the various rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b). “In reviewing the adequacy of
compliance with Rule 11, this Court should accord deference to
the trial court’s decision as to how best to conduct the
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mandated colloquy with the defendant.” United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because Bostic did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). To establish plain error, Bostic must
show that an error occurred, that the error was plain, and that
the error affected his substantial rights. United States v.
Muhammad, 478 F.3d 247, 249 (4th Cir. 2007) (citation omitted).
Even if Bostic satisfies these requirements, the court retains
discretion to correct the error, which it should not exercise
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id. (internal
quotation marks and citation omitted).
In the guilty plea context, a defendant must show that
he would not have pled guilty but for the district court’s Rule
11 omissions. Martinez, 277 F.3d at 532. The district court
here substantially complied with the requirements of Rule 11 and
Bostic does not suggest that he would not have pled guilty had
the district court’s Rule 11 colloquy been more exacting.
Accordingly, Bostic has failed to show that the district court’s
minor Rule 11 omissions amounted to plain error.
Next, we conclude that we lack jurisdiction to review
Bostic’s sentence because it was less than the applicable
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statutory maximum, and because he received the precise sentence
he had bargained for with the Government. See United States v.
Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998) (“[a]
defendant receiving a sentence under a Rule 11(e)(1)(C) plea
agreement may appeal only when his sentence was imposed in
violation of law [or] was imposed as a result of an incorrect
application of the sentencing guidelines[.]”)(internal citation
omitted); United States v. Littlefield, 105 F.3d 527, 527-28
(9th Cir. 1997); United States v. Powell, 347 Fed. App’x 963,
964-65 (4th Cir. 2009) (unpublished); see also United States v.
Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) (“[a] sentence
imposed under a Rule 11(c)(1)(C) plea arises directly from the
agreement itself, not from the Guidelines”).
Bostic’s pro se claims are also meritless. In his
two-page letter to the court, Bostic takes issue with the
proceedings below in several ways; however, we find that none
the issues he raises have any bearing on the integrity of his
guilty plea, or provide this court with a jurisdictional basis
to review his sentence.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. Accordingly,
we affirm the district court’s judgment. Counsel is directed to
inform Bostic, in writing, of his right to petition the Supreme
Court of the United States for further review. If Bostic
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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 thereof was served on Bostic. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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