UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4939
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON LAMAR HARRINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00323-TDS-1)
Submitted: February 10, 2011 Decided: February 16, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Lamar Harrington pleaded guilty pursuant to a
written plea agreement to one count of conspiracy to distribute
cocaine base, in violation of 21 U.S.C. § 846 (2006). The
district court imposed a downward variance sentence of 188
months of imprisonment. Counsel for Harrington filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning whether the guilty plea was knowing and voluntary
and whether the district court fashioned a reasonable sentence.
Harrington filed a pro se supplemental brief. The Government
elected not to file a brief. Finding no error, we affirm.
A guilty plea is constitutionally valid if it
“represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). We evaluate a
guilty plea based on the “the totality of the circumstances”
surrounding the guilty plea. United States v. Moussaoui, 591
F.3d 263, 278 (4th Cir 2010). Harrington did not move to
withdraw his guilty plea, and this court therefore reviews the
adequacy of the plea pursuant to Fed. R. Crim. P. 11 for plain
error. See United States v. Vonn, 535 U.S. 55, 58-59 (2002)
(holding defendant who lets Rule 11 error pass without objection
in the district court must satisfy the plain-error test); United
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States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). The
district court properly conducted the Rule 11 hearing and the
record reveals that Harrington’s plea was knowing and voluntary.
A review of the record reveals no error in sentencing. *
When determining a sentence, the district court must calculate
the appropriate advisory Sentencing Guidelines range and
consider it in conjunction with the factors set forth in 18
U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Lynn, 592 F.3d 572 (4th Cir.
2010). Appellate review of a district court’s imposition of a
sentence, “whether inside, just outside, or significantly
outside the [g]uidelines range,” is for abuse of discretion.
Gall, 552 U.S. at 41. Sentences within the applicable
Guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007).
The district court followed the necessary procedural
steps in sentencing Harrington, appropriately treating the
Sentencing Guidelines as advisory, properly calculating and
*
Harrington’s plea agreement included a waiver barring an
appeal from the calculation of his sentence. However, the
Government has not filed a motion to dismiss asserting the
waiver, and we do not sua sponte enforce appellate waivers. See
generally United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th
Cir. 2000)).
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considering the applicable Guidelines range, and weighing the
relevant § 3553(a) factors. Harrington’s Guidelines range was
262-327 months. The court granted a downward variance sentence
of 188 months and the sentence may be presumed reasonable by
this court. Pauley, 511 F.3d at 473. We conclude that the
district court did not abuse its discretion in imposing the
chosen sentence.
Harrington filed a pro se supplemental brief
questioning whether the district court erred in using a
conviction obtained pursuant to an Alford plea to apply the
career offender enhancement and whether the court erred in
failing to further reduce his sentence based on the latest
amendment for crack cocaine sentences. In accordance with
Anders, we have reviewed these issues and the record in this
case and have found no meritorious issues for appeal. We
therefore affirm Harrington’s conviction and sentence. This
court requires that counsel inform Harrington, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Harrington 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 Harrington. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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