UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD CHANEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:08-cr-00773-MJP-1)
Submitted: August 31, 2010 Decided: September 23, 2010
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Robert Claude Jendron, Jr.,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Chaney appeals his conviction and 151-month
sentence for possession with intent to distribute cocaine base,
in violation of 21 U.S.C. § 841 (2006). Chaney’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), contending there are no meritorious issues on appeal,
but questioning whether the district court complied with Fed. R.
Crim. P. 11 in accepting Chaney’s guilty plea and whether the
sentence is reasonable. Chaney has filed a pro se supplemental
brief, arguing that the district court erred in categorizing him
as a career offender. The Government declined to file a brief.
We affirm.
“Prior to accepting a guilty plea, a trial court,
through colloquy with the defendant, must inform the defendant
of, and determine that he understands, the nature of the
charge(s) 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. United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991); Fed. R. Crim. P.
11(b)(1)-(2). The court also must determine whether there is a
factual basis for the plea. Fed. R. Crim. P. 11(b)(3); DeFusco,
949 F.2d at 120. Because Chaney did not move in the district
court to withdraw his guilty plea, any error in the Rule 11
hearing is reviewed for plain error. United States v. Martinez,
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277 F.3d 517, 525 (4th Cir. 2002). To establish plain error,
Chaney must “show that an error occurred, that the error was
plain, and that the error affected his substantial rights.”
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). In
order to demonstrate that his substantial rights were affected,
Chaney “must show a reasonable probability that, but for the
error, he would not have entered the plea.” United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal
quotation marks omitted).
After reviewing the record, we conclude that the
district court performed a thorough plea colloquy prior to
accepting Chaney’s guilty plea, substantially in compliance with
Rule 11. Though the district court did not inform Chaney that
he could be prosecuted for perjury if he made any false
statements during the hearing, this error did not affect
Chaney’s substantial rights, as he has not alleged that he would
not have pleaded guilty if he had been so informed. See
Massenburg, 564 F.3d at 344. Additionally, though the district
court did not explicitly state that it found a factual basis for
the guilty plea, because the record leaves no doubt that such a
factual basis existed, the district court’s acceptance of the
plea was not in error. Martinez, 277 F.3d at 531. Accordingly,
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we conclude that the errors in the plea colloquy did not affect
Chaney’s substantial rights.
As to Chaney’s sentencing claims, we are charged with
reviewing sentences for both procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
In determining procedural reasonableness, we first assess
whether the district court properly calculated the defendant’s
advisory guidelines range. Id. at 49-50. We then determine
whether the district court failed to consider the 18 U.S.C.
§ 3553(a) (2006) factors and any arguments presented by the
parties, treated the guidelines as mandatory, selected a
sentence based on “clearly erroneous facts,” or failed to
sufficiently explain the selected sentence. Id. at 51; United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Finally,
we review the substantive reasonableness of the sentence,
“taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” Pauley, 511 F.3d at 473 (quoting Gall, 552 U.S. at
51). After reviewing the record, we conclude that Chaney’s
sentence is both procedurally and substantively reasonable.
In accordance with Anders, we have reviewed the record
and find no meritorious issues on appeal. Additionally, we have
reviewed the issues raised in Chaney’s supplemental brief and
find them to be without merit. Therefore, we affirm the
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judgment of the district court, but remand for correction of a
clerical error in the written judgment. The first page of the
judgment incorrectly states that Chaney was convicted of
violating 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Instead, the
judgment should read that Chaney was convicted of violating 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B). This court requires that
counsel inform his client, in writing, of his right to petition
the Supreme Court of the United States for further review. If
the client 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 the client. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument will not aid the
decisional process.
AFFIRMED AND REMANDED
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