UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4805
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
and
ROY NELSON PATTON, SR.; JOHN WILSON PATTON; BARBARA ANN
PATTON LEONARD,
Claimants,
v.
ASHTON DURRELL FARLEY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00128-LHT-8)
Submitted: July 29, 2010 Decided: August 23, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leslie Carter Rawls, Washington, D.C., for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ashton Durrell Farley timely appeals the 120-month
sentence imposed following his guilty plea, pursuant to a
written plea agreement, to one count of conspiracy to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). Farley’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether: (1) Farley’s guilty plea was knowing and
voluntary, (2) Farley’s appellate waiver is valid and
enforceable, and (3) Farley’s sentence is in accordance with law
and constitutional requirements. Farley was advised of his
right to file a pro se brief, but has not done so. Finding no
reversible error, we affirm.
Prior to accepting a defendant’s guilty plea, Federal
Rule of Criminal Procedure 11 requires the district court to
address the defendant in open court and ensure he understands,
among other things, the nature of the charge against him, the
possible punishments he faces, and the rights he relinquishes by
pleading guilty. Fed. R. Crim. P. 11(b)(1). Because Farley did
not move to withdraw his guilty plea in the district court or
raise any objections to the Rule 11 colloquy, the colloquy is
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 524-27 (4th Cir. 2002); United States v. General, 278 F.3d
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389, 393 (4th Cir. 2002). To demonstrate plain error, a
defendant must show that: (1) there was an error; (2) the error
was plain; and (3) the error affected his “substantial rights.”
United States v. Olano, 507 U.S. 725, 732 (1993). A defendant’s
substantial rights are affected if we determine that the error
“influenced the defendant’s decision to plead guilty and
impaired his ability to evaluate with eyes open the direct
attendant risks of accepting criminal responsibility.” United
States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal
quotation marks omitted); see also Martinez, 277 F.3d at 532
(holding that a defendant must demonstrate that he would not
have pled guilty but for the error).
Neither counsel nor Farley identify any errors in the
plea colloquy or assert that any error influenced Farley’s
decision to plead guilty. Additionally, our review of the plea
hearing transcript reveals no deficiencies in the colloquy.
Therefore, we find that Farley’s guilty plea was knowing and
voluntary.
Counsel also requests this court to examine the
validity of Farley’s appellate waiver. However, any challenge
to the enforceability of the waiver is moot because the
Government has not filed a motion to dismiss based on the
appellate waiver, and we decline to sua sponte enforce the
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waiver. See United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005).
Counsel also questions whether Farley’s sentence
violates the law or his constitutional rights. Because Farley
did not raise any claim of error related to his sentence in the
district court, we review for plain error. United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010).
In reviewing a sentence, we must first ensure that the
district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
range found in the U.S. Sentencing Guidelines Manual, failing to
consider the 18 U.S.C. § 3553(a) (2006) factors, or failing to
adequately explain the sentence. Gall v. United States, 552
U.S. 38, 51 (2007). The district court is not required to
“robotically tick through § 3553(a)’s every subsection.” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However,
the district court must “place on the record an individualized
assessment based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit meaningful appellate review.”
United States v. Carter, 564 F.3d, 325, 330 (4th Cir. 2009)
(internal quotation marks, footnote, and citation omitted).
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This is true even when the district court sentences a defendant
within the applicable Guidelines range. Id.
Counsel first calls to our attention certain
requirements of Federal Rule of Criminal Procedure 32 (“Rule
32”) relating to the Presentence Investigation Report (“PSR”)
and sentencing. However, our review of the record reveals that
the district court fully complied with Rule 32.
Additionally, the district court, taking into account
the statutory mandatory minimum sentence, properly calculated
Farley’s applicable Guidelines sentence of 120 months’
imprisonment, using the appropriate version of the Guidelines.
While the district court failed to discuss the § 3553(a) factors
or conduct an individualized assessment as required by Carter,
we conclude that, in light of the district court’s imposition of
a sentence at the statutory mandatory minimum, that failure did
not affect Farley’s substantial rights under plain error review.
Because the Government did not move to allow the district court
to impose a sentence below the statutory mandatory minimum, the
district court had no authority to depart below the sentence it
imposed. 18 U.S.C. § 3553(e); Melendez v. United States, 518
U.S. 120, 125-26 (1996).
Once we have determined there is no procedural error,
we must then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
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Gall, 552 U.S. at 51. If the sentence imposed is within the
appropriate Guidelines range, on appeal it is presumptively
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008). The presumption may be rebutted by a showing “that the
sentence is unreasonable when measured against the § 3553(a)
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
Because the district court imposed a within-Guidelines
sentence, it is presumptively reasonable on appeal. Farley has
not rebutted that presumption. Accordingly, the district court
committed no significant procedural or substantive error in
sentencing Farley to 120 months’ imprisonment.
In accordance with Anders, we have examined the entire
record and find no meritorious issues for appeal. We therefore
affirm the district court’s judgment. 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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