UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5160
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE RODERICK MILLER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:08-cr-00277-D-1)
Submitted: November 30, 2010 Decided: January 7, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Roderick Miller appeals the district court’s
judgment imposing a sentence of 120 months in prison and three
years of supervised release after he pled guilty to being a
convicted felon in possession of firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). Miller’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in his opinion, there are no meritorious grounds for
appeal but raising the issues of whether Miller’s guilty plea
was knowing and voluntary; whether his trial attorneys rendered
ineffective assistance; whether the district court correctly
calculated his guideline range; whether the district court
applied the correct standard of proof in finding facts used to
enhance his sentence; whether prosecutorial misconduct occurred;
whether the district court erred in denying a reduction for
acceptance of responsibility; and whether Miller’s sentence is
unreasonable as disparately high in violation of 18 U.S.C.
§ 3553(a)(6) (2006). Miller was notified of his right to file a
pro se supplemental brief but has not done so. We affirm.
Appellate counsel first questions whether Miller’s
guilty plea was knowing and voluntary. For a guilty plea to be
valid, “[i]t must reflect ‘a voluntary and intelligent choice
among the alternative courses of action open to the defendant.’”
United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)
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(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). The
guilty plea colloquy conducted by the district court pursuant to
Fed. R. Crim. P. 11 is the avenue by which the court establishes
that the defendant knowingly and voluntarily entered his guilty
plea. See United States v. Wood, 378 F.3d 342, 349 (4th Cir.
2004). Because Miller did not move in the district court to
withdraw his guilty plea, we review the Rule 11 colloquy for
plain error. See United States v. Martinez, 277 F.3d 517, 525
(4th Cir. 2002). Thus, it is Miller’s burden to show (1) error;
(2) that is plain; (3) affecting his substantial rights; and (4)
we should exercise our discretion to notice the error. Id. at
529. We have reviewed the record and conclude that Miller has
shown no plain error affecting his substantial rights, and the
district court’s guilty plea colloquy in compliance with Rule 11
ensured that Miller’s plea was knowing and voluntary.
Appellate counsel next questions whether Miller
received ineffective assistance of counsel, but he concludes the
record does not reveal any. As acknowledged by counsel, we will
only address this issue on direct appeal if the lawyer’s
ineffectiveness conclusively appears from the record. See
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
We have reviewed the record and conclude that it does not
conclusively support this claim. Counsel also questions whether
there was any prosecutorial misconduct, but he concludes Miller
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has no argument for prosecutorial misconduct. We have reviewed
the record and agree that this claim is likewise without merit.
Appellate counsel’s remaining issues on appeal relate
to Miller’s sentence. We review a 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 us to
ensure that the district court committed no significant
procedural error, such as improperly calculating the guideline
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then
consider the substantive reasonableness of the sentence imposed,
taking into account the totality of the circumstances. Gall,
552 U.S. at 51. On appeal, we presume that a sentence within a
properly calculated guideline range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
We have reviewed the record and conclude that the
district court did not err or abuse its discretion in sentencing
Miller, and his sentence is both procedurally and substantively
reasonable. Because Miller used the firearm in connection with
drug trafficking, his base offense level was determined based on
the drug quantity for which he was responsible pursuant to U.S.
Sentencing Guidelines Manual §§ 2D1.1, 2K2.1(c)(1)(A), 2X1.1
(2008). The probation officer determined he was responsible for
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5.7 grams of cocaine hydrochloride and 210 grams of cocaine base
based on his statement to police that he bought 7 to 14 grams of
cocaine base every other day over a two-month period. This
resulted in a final base offense level of thirty-four. After a
three-level reduction for acceptance of responsibility, and with
his criminal history category II, Miller’s guideline range would
have been 121 to 151 months. However, because of the statutory
maximum, his guideline range became 120 months.
Miller objected to the drug quantity, denying his
statements to police and contending he was only responsible for
the 5.7 grams of cocaine hydrochloride and .9 grams of cocaine
base found in the search of his home. He also requested a
variance sentence below the guideline range based on his
attempts to provide information to the Government, acceptance of
responsibility, character letters from family and friends, and
the impact that incarceration would have on his family.
Finally, Miller argued that the Government was required to prove
the drug quantity beyond a reasonable doubt.
At sentencing, the district court correctly ruled that
a sentencing judge may find facts relevant in determining an
advisory guideline range by a preponderance of the evidence.
See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir.
2008). The Government presented evidence of Miller’s statements
to law enforcement officers, and Miller testified denying those
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statements. The district court credited the testimony of the
officers, discredited Miller’s testimony, and found that he had
made statements that he purchased 7 to 14 grams of cocaine base
every other day for over a two-month period. The district court
overruled Miller’s objection as to drug quantity; found his
testimony at the hearing was untruthful and that he had “utterly
failed to fully accept responsibility, as reflected in his
perjurious testimony here”; and denied him a reduction for
acceptance of responsibility. Accordingly, the district court
determined Miller’s total offense level was thirty-four, and
with a criminal history category II, his advisory range would be
168 to 210 months. However, due to the statutory maximum, the
guideline range became 120 months. In sentencing him to 120
months, the district court noted it had considered all of the
statutory sentencing factors. The court took into account the
variance request but did not believe a variance was appropriate
in light of the serious nature of the offense, Miller’s
testimony at the hearing, and the totality of the record.
As to the remaining issues on appeal, we find no clear
error in the district court’s decision denying Miller a sentence
reduction for acceptance of responsibility, because he falsely
denied his previous statements regarding drug quantity. See
USSG § 3E1.1 cmt. n.1 (2008); United States v. Dugger, 485 F.3d
236, 239 (4th Cir. 2007). Moreover, based on its drug quantity
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findings, the district court properly calculated Miller’s
guideline range. We review counsel’s argument that Miller’s
sentence is possibly disparately high in violation of 18 U.S.C.
§ 3553(a)(6) for plain error, because Miller did not make this
argument in the district court. See United States v. Hargrove,
___ F.3d ___, 2010 WL 4676980, *12 (4th Cir. 2010) (plain error
review applies to specific allegation of error in substantive
reasonableness analysis); see also United States v. Lynn, 592
F.3d 572, 579 n.4 (4th Cir. 2010) (lodging a specific claim of
error before the district court, e.g., relying on certain § 3553
factors, does not preserve for appeal a different claim of
error, e.g., relying on different § 3553 factors). We conclude
Miller has shown no plain error affecting substantial rights.
In accordance with Anders, we have reviewed the entire
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 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.
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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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