UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK TRUESDALE, a/k/a Paperboy,
Defendant - Appellant.
No. 10-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK TRUESDALE, a/k/a Paperboy, a/k/a Little D,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00288-WDQ-5; 1:09-cr-00287-WDQ-5)
Submitted: March 3, 2011 Decided: March 18, 2011
Before WILKINSON, MOTZ, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, HAZLEHURST VITRANO LLC, Hunt Valley, Maryland,
for Appellant. Kwame Jangha Manley, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Derrick Truesdale appeals his convictions and 262
month sentence for one count of conspiracy to participate in a
racketeering enterprise in violation of 18 U.S.C. § 1962(d)
(2006), and one count of conspiracy to possess with intent to
distribute heroin in violation of 21 U.S.C. § 846 (2006).
Counsel has filed a brief in this court pursuant to Anders v.
California, 386 U.S. 738 (1967), indicating that there are no
meritorious issues for appeal. Truesdale has filed a pro se
supplemental brief. The Government has elected not to file a
brief. We affirm.
In the Anders brief, counsel indicates that because
Truesdale executed a plea agreement that contained an appeal
waiver, there are no meritorious issues for appeal. The
Government, however, has not filed a responsive brief invoking
the appeal waiver, nor has the Government moved to dismiss this
appeal. Accordingly, the Government has waived reliance on the
waiver, and the court will perform its required Anders review.
See United States v. Poindexter, 492 F.3d 263, 271
(4th Cir. 2007) (noting that if the government does nothing in
response to an Anders brief in a case where the appellant has
waived his right to appeal, the Court will perform its required
Anders review); see also United States v. Metzger, 3 F.3d 756,
757-58 (4th Cir. 1993) (holding that the government’s failure to
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assert an appeal waiver as a bar to the appeal constitutes a
waiver of reliance on the appeal waiver).
I. Adequacy of the Rule 11 Colloquy
Where the defendant 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, [Truesdale] 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) (citation omitted). Even if
Truesdale satisfies these requirements, the court retains
discretion to correct the error, which it should not exercise
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id. (internal
quotation marks and citation omitted).
*
Truesdale did file a pro se motion to withdraw his plea,
which the district court did not consider. Because Truesdale
was represented by counsel at the time, his motion has not
preserved a challenge to the adequacy of the Rule 11 hearing.
See Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001)
(pro se filing does not preserve issue for appellate review
where defendant is represented by counsel at the time of the
filing).
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We have reviewed the record of the Rule 11 hearing,
and we conclude that the district court complied with the Rule’s
mandates. The court ensured that Truesdale’s plea was knowing,
voluntary, and supported by an adequate factual basis.
II. Sentence
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, we must decide whether
the district court considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009). Properly preserved claims of procedural error
are subject to harmless error review. Lynn, 592 F.3d at 576.
If the sentence is free of significant procedural error, the
appellate court reviews the substantive reasonableness of the
sentence. Id. at 575; United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
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Our review of the sentencing proceeding reveals that
the sentence was procedurally reasonable. The court correctly
calculated the Guidelines range, including its classification of
Truesdale as a career offender. In addition, the court’s
explanation of Truesdale’s sentence was adequate. Accordingly,
the sentence was procedurally reasonable.
Even if the sentence is procedurally reasonable, we
must consider the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010). We presume on appeal that a sentence within a
properly calculated Guideline range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Our review
of the record reveals that Truesdale has not rebutted the
presumption of reasonableness accorded his within-Guidelines
sentence.
III. Pro Se Supplemental Brief
In his supplemental brief, Truesdale makes numerous
challenges to his sentence, argues that counsel provided
ineffective assistance, and claims that the district court erred
in failing to consider his pro se motion to withdraw his guilty
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plea. We have carefully reviewed these claims and initially
conclude that Truesdale’s claims of ineffective assistance of
counsel are not cognizable on direct appeal. See United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). We conclude
that the remainder of Truesdale’s claims are without merit.
IV. Other Meritorious Issues for Appeal
Finally, 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 judgment of the
district court. We also deny Truesdale’s motion to amend his
pro se supplemental brief. This court requires that counsel
inform Truesdale, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Truesdale 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 Truesdale.
We dispense with oral argument because the facts and
legal contentions are adequately before the court and argument
would not aid the decisional process.
AFFIRMED
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