UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4727
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
and
ROY NELSON PATTON, SR.; JOHN WILSON PATTON; BARBARA ANN
PATTON LEONARD,
Claimants,
v.
JANELLE DYANNE PEARSON,
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-MR-DLH-11)
Submitted: October 7, 2010 Decided: November 3, 2010
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Thomas Richard Ascik, Amy Elizabeth Ray, Assistant United States
Attorneys, Jill Westmoreland Rose, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Janelle Dyanne Pearson timely appeals the 108-month
sentence imposed following her guilty plea to conspiracy to
possess with intent to distribute cocaine base, in violation of
21 U.S.C. §§ 841(a)(1), 846 (2006). On appeal, 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) the district court had jurisdiction to
accept Pearson’s guilty plea and impose sentence; (2) Pearson’s
guilty plea was knowing and voluntary; and (3) the district
court erred in failing to sentence Pearson to less than 108
months’ imprisonment. Pearson has not filed a pro se brief,
though she was advised of her right to do so. Finding no
reversible error, we affirm.
Counsel’s first two arguments essentially go to the
adequacy of the Federal Rule of Criminal Procedure 11 (“Rule
11”) hearing, questioning whether there was an adequate factual
basis for accepting Pearson’s guilty plea and whether Pearson’s
plea was knowing and voluntary. Prior to accepting a
defendant’s guilty plea, a magistrate judge or the district
court must address the defendant in open court and ensure she
understands, among other things, the nature of the charge
against her, the possible punishments she faces, and the rights
she relinquishes by pleading guilty. Fed. R. Crim. P. 11(b)(1).
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The court also must ensure that a sufficient factual basis
exists to support the plea, Fed. R. Crim. P. 11(b)(3), and that
the plea is knowing and voluntary, Fed. R. Crim. P. 11(b)(2).
Because Pearson did not move to withdraw her guilty
plea in the district court or raise any objections to the Rule
11 colloquy, we review for plain error. United States v.
General, 278 F.3d 389, 393 (4th Cir. 2002); United States v.
Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). Upon review, we
conclude that the district court did not err in accepting the
offense conduct presented in the presentence report as
sufficient to enter the guilty plea. See United States v.
Kellam, 568 F.3d 125, 139 (4th Cir.) (stating elements of
offense), cert. denied, 130 S. Ct. 657 (2009). Moreover, our
review of the plea hearing transcript reveals no deficiencies in
the colloquy conducted by the magistrate judge. Therefore, the
district court did not err in finding Pearson’s guilty plea
knowing and voluntary.
Finally, counsel argues that the district court erred
in sentencing Pearson to 108 months’ imprisonment, stating that
Pearson should have received a lower sentence based on her
substantial assistance to the Government. After granting the
Government’s substantial assistance motion and accepting the
Government’s recommendation regarding the extent of the
departure, the district court departed downward and sentenced
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Pearson below the applicable statutory mandatory minimum
sentence based upon the circumstances of Pearson’s case. The
district court was under no obligation to further depart based
on the Government’s motion. To the extent Pearson appeals the
sufficiency and extent of the departure simply because of her
dissatisfaction with it, we do not have jurisdiction to consider
that claim. United States v. Brewer, 520 F.3d 367, 371 (4th
Cir. 2008); United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995).
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 Pearson, in writing, of her right
to petition the Supreme Court of the United States for further
review. If Pearson 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 Pearson. 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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