UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4261
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTEZ NOBLE, a/k/a LT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00151-PMD-3)
Submitted: January 31, 2011 Decided: March 17, 2011
Before SHEDD, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Hallman, Jr., Columbia, South Carolina, for Appellant.
Sean Kittrell, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Montez Noble pleaded guilty to conspiracy to possess
with intent to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 846 (2006), and conspiracy to use
and carry firearms in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(o) (2006). The district court
sentenced Noble to 151 months of imprisonment and he now
appeals. Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court erred in conducting the hearing pursuant to
Fed. R. Crim. P. 11, whether the court failed to comply with
Fed. R. Crim. P. 32, and whether the sentence is procedurally
unreasonable. Noble was informed of his right to file a pro se
supplemental brief, but has not done so. Finding no reversible
error, we affirm.
Counsel first questions whether the district court
fully complied with the requirements of Rule 11, and whether any
of the district court’s omissions rendered Noble’s guilty plea
unknowing and involuntary. 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 charges 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. Fed. R.
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Crim. P. 11(b). The court also must determine whether there is
a factual basis for the plea. Id.; United States v. DeFusco,
949 F.2d 114, 120 (4th Cir. 1991). The purpose of the Rule 11
colloquy is to ensure that the plea of guilt is entered into
knowingly and voluntarily. See United States v. Vonn, 535 U.S.
55, 58 (2002).
Here, because Noble 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 (4th Cir. 2002). “To establish plain error, [Noble]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United
States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if
Noble satisfies these requirements, “correction of the error
remains within our discretion, which we should not exercise . .
. unless the error seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). Our review of the record
reveals substantial compliance with the requirements of Rule 11.
We therefore conclude that the district court did not plainly
err.
Counsel next questions whether the district court
complied with Fed. R. Crim. P. 32(i)(A), (D), in failing to
allow Noble an opportunity to present any further objections to
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the presentence report and failing to inquire whether trial
counsel had reviewed the report with Noble. Fed. R. Crim. P.
32(i)(1)(D) states that a district court “may, for good cause,
allow a party to make a new objection at any time before
sentence is imposed.” We have reviewed the record, however, and
conclude that the district court presented Noble adequate
opportunities to raise any objections to the presentence report.
With respect to the second claimed error, under Fed.
R. Crim. P. 32(i)(1)(A), the district court “must verify that
the defendant and the defendant’s attorney have read and
discussed the presentence report and any addendum to the
report.” However, the court “need not expressly ask whether the
defendant has read the presentence report and discussed it with
his counsel, provided there is . . . evidence in the record from
which one could reasonably infer that the defendant and his
counsel have read and discussed the report.” United States v.
Lockhart, 58 F.3d 86, 88 (4th Cir. 1995) (internal quotation
marks and citation omitted). Where, as here, a defendant fails
to raise this issue before the district court, this court
reviews it only for plain error. Id. Having thoroughly
reviewed the record, we conclude that the district court’s
failure to inquire on the record whether counsel and Noble had
reviewed the report did not affect Noble’s substantial rights.
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We conclude, therefore, that the court’s omission did not amount
to plain error.
Finally, counsel questions whether the sentence is
reasonable. We review a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d
330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the [g]uidelines range, treating the [g]uidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall, 128 S. Ct. at 597. Finally, we then
“‘consider the substantive reasonableness of the sentence
imposed.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (quoting Gall, 552 U.S. at 51). This court presumes on
appeal that a sentence within a properly calculated advisory
guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
U.S. 338, 346-56 (2007) (upholding presumption of reasonableness
for within guidelines sentence).
We have thoroughly reviewed the record and conclude
that the sentence is both procedurally and substantially
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reasonable. The district court properly calculated the
guidelines range, considered the guidelines range along with the
§ 3553(a) factors, and explained its chosen sentence. See
United States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009)
(reaffirming that sentencing court must make individualized
assessment on the record and explain rejection of parties’
arguments for sentence outside guidelines range). Moreover,
Noble cannot overcome the presumption of reasonableness we
accord to his within-guidelines sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Noble, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Noble 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 Noble. 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 in the decisional process.
AFFIRMED
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