UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4836
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL JERROD DIXON, a/k/a G Thang,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:09-cr-00207-CMC-3)
Submitted: September 3, 2010 Decided: October 15, 2010
Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew R. Mackenzie, BARRETT MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. William Walter Wilkins, III, United
States Attorney, James Chris Leventis, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dixon appeals his conviction and life sentence
following a guilty plea to a single count of conspiracy to
possess with intent to distribute and to distribute 5 kilograms
or more of cocaine and 50 grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). His
attorney has filed a brief in this court pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
meritorious issues for appeal, but questioning whether the
district court erred in enhancing Dixon’s sentence when Dixon
allegedly did not know he was pleading guilty to one of the
predicate offenses, and whether the district court erred in
enhancing Dixon’s sentence when two of his predicate offenses
“may have been consolidated” in state court. Dixon was notified
of his right to file a pro se supplemental brief, but has not
done so.
Though counsel does not question the validity of the
guilty plea or the Fed. R. Crim. P. 11 hearing, we will, in the
Anders context, review the validity of the colloquy. Because
Dixon 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, 277 F.3d 517, 525-26
(4th Cir. 2002). To establish plain error, he “must show:
(1) an error was made; (2) the error is plain; and (3) the error
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affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009) (reviewing unpreserved Rule 11
error). “The decision to correct the error lies within [this
court’s] discretion, and [the court] exercise[s] that discretion
only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. at 343
(internal quotation marks omitted). The defendant bears the
burden of showing plain error.
Our review of the record leads us to conclude that the
district court conducted a thorough colloquy well within the
mandates of Rule 11. The court ensured the plea was knowing,
voluntary, and supported by an adequate factual basis. We
accordingly affirm Dixon’s conviction.
This court reviews Dixon’s sentence under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires the court to “ensure that the district court committed
no significant procedural error, such as improperly calculating
the Guidelines range.” United States v. Osborne, 514 F.3d 377,
387 (4th Cir.) (internal quotation marks, citations and
alterations omitted), cert. denied, 128 S. Ct. 2525 (2008). The
court then considers the substantive reasonableness of the
sentence, “tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51. This court presumes on
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appeal that a sentence within a properly calculated Guideline
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
Counsel first questions whether Dixon’s South Carolina
conviction for possession of contraband in a jail should count
towards a 18 U.S.C. § 851 (2006) sentence enhancement. Dixon
argued in district court that he did not voluntarily plead
guilty to the charge and he never appeared before a judge.
Dixon is mounting a challenge to the conviction’s validity
pursuant to § 851(c). Because the underlying conviction was
obtained in 1996 and the § 851 information was lodged in 2009,
his challenge is clearly precluded by the five-year statute of
limitations in § 851(e).
Dixon next questions whether his two underlying
offenses should have been counted as a single offense for the
purposes of § 851 because they were “consolidated.” Though the
record reveals that he was sentenced for both offenses on the
same day, the offenses were clearly separate. The state treated
the offenses as separate, there were separate charging
documents, and the charges stemmed from separate arrests. We
agree with counsel that this argument is without merit. We
conclude that Dixon’s sentence was both procedurally and
substantively reasonable.
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In accordance with Anders, we have reviewed the entire
record and found no meritorious claims for appeal. Accordingly,
we affirm the district court’s judgment. 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 expressed
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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