UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4641
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DAVID EARLE MOORE, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-00812-HMH-1)
Submitted: March 29, 2010 Decided: April 14, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Everett P. Godfrey, Jr., GODFREY LAW FIRM LLC, Greenville, South
Carolina, for Appellant. Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Earle Moore, Jr., pled guilty to one count each
of possession with intent to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B) (2006), and being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), 924(e) (2006), and was sentenced to 188 months in
prison. Counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that after a review of
the record, he has found no meritorious issues for appeal. The
Anders brief nonetheless suggests that the district court
committed plain error when it sentenced Moore. Moore has not
filed a pro se supplemental brief despite receiving notice that
he may do so, and the Government declined to file a responsive
brief. Finding no error, we affirm.
In the absence of a motion to withdraw a guilty plea,
we review the adequacy of the guilty plea pursuant to Fed. R.
Crim. P. 11 for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). A review of Moore’s Rule 11
hearing reveals that the district court complied with Rule 11’s
requirements. Moore’s plea was knowingly, voluntarily, and
intelligently made, with full knowledge of the consequences
attendant to his guilty plea. We therefore find that no plain
error occurred and affirm Moore’s convictions.
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We also affirm Moore’s sentence. Moore’s presentence
investigation report properly placed him in a category VI
criminal history and attributed him with a total offense level
of thirty-one, yielding a Guidelines range of 188 to 235 months.
Moreover, at sentencing, the district court appropriately heard
counsel’s argument regarding the weight that should be afforded
the 18 U.S.C. § 3553(a) (2006) factors, allowed Moore an
opportunity to allocute, and considered the § 3553(a) factors
before imposing Moore’s sentence.
Although the district court procedurally erred when it
imposed Moore’s sentence with only a cursory reference to the
§ 3553(a) factors and the Guidelines, see United States v.
Carter, 564 F.3d 325, 328-29 (4th Cir. 2009), because Moore
argued only for a sentence at the bottom of his Guidelines
range, Moore did not adequately preserve an objection to the
district court’s error. United States v. Lynn, 592 F.3d 572,
579-80 (4th Cir. 2010). Accordingly, we need only review the
sentencing error for plain error. See id. at 580.
To establish plain error, Moore has to show that an
error: (i) was made; (ii) is plain (i.e., clear or obvious); and
(iii) affects his substantial rights. United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if we
assumed that the district court's brief explanation constituted
an obvious error in violation of Carter, Fed. R. Crim. P. 52(b)
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requires Moore to also show that the district court’s lack of
explanation had a prejudicial effect on the sentence imposed.
See Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009).
Having only summarily raised the reasonableness of his 188-month
sentence in an Anders brief to this court, Moore has made no
such showing. We thus affirm Moore’s within-Guidelines
sentence. See United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007) (recognizing that this court applies an appellate
presumption of reasonableness to a within-Guidelines sentence).
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 Moore, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Moore 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 Moore. 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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