United States v. Burt

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5119

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JERMOLL BURT,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:06-cr-00213-1)

Submitted: March 29, 2010 Decided: April 21, 2010

Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Erik S. Goes, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jermoll Burt pled guilty, pursuant to a written plea

agreement, to conspiracy to distribute fifty kilograms or more

of marijuana, in violation of 21 U.S.C. § 846 (2006). The

district court calculated Burt’s advisory Guidelines

imprisonment range under the U.S. Sentencing Guidelines Manual

(2007) at seventy-eight to ninety-seven months’ imprisonment,

but granted a downward variance and imposed a seventy-two month

sentence.

On appeal, Burt’s attorney filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), noting no

meritorious issues for appeal. Burt was advised of his right to

file a pro se supplemental brief and, despite several extensions

of time, has not done so. The Government declined to file a

brief and does not seek to enforce the plea agreement’s appeal

waiver. * Finding no reversible error, we affirm.

Burt does not challenge the district court’s denial of

his pre-sentencing motion to withdraw his guilty plea.

Therefore, our review is for abuse of discretion. United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). We

*
Because the Government fails to assert the appellate
waiver contained in Burt’s plea agreement, we may conduct an
Anders review. See United States v. Poindexter, 492 F.3d 263,
271 (4th Cir. 2007).

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closely scrutinize the Fed. R. Crim. P. 11 colloquy and attach a

strong presumption that the plea is final and binding, after

determining that the Rule 11 hearing was adequate. United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

Critically, the transcript reveals that the district court

ensured the plea was supported by an independent factual basis,

and that Burt entered the plea knowingly and voluntarily with an

understanding of the consequences. See United States v. Wilson,

81 F.3d 1300, 1307 (4th Cir. 1996). Finding that the Rule 11

hearing was adequate and that Burt failed to overcome the

presumption that his plea is final and binding, we conclude the

district court did not abuse its discretion in denying the

motion to withdraw his guilty plea. See United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991) (listing factors to consider

when addressing motion to withdraw plea).

Turning to Burt’s sentence, we review it for

reasonableness under an abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). The district court

correctly calculated the advisory Guidelines range and heard

argument from the parties on the appropriate sentence and

allocution from Burt. The court considered the relevant 18

U.S.C. § 3553(a) (2006) factors, addressing on the record the

nature and circumstances of the offense, Burt’s history and

characteristics, Burt’s request for a downward variance

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considering he had served a 169-day sentence for a state

conviction arising out of an offense that occurred during the

federal conspiracy, and the need to impose a sentence that was

sufficient, but not greater than necessary to meet the

sentencing goals. We find no error by the district court in

calculating Burt’s Guidelines range. See Gall, 552 U.S. at 51

(providing standard of review). Furthermore, the district

court’s statements at the sentencing hearing clearly reflect a

valid and individualized assessment under § 3553(a) and justify

the sentence imposed. See United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009); United States v. Pauley, 511 F.3d 468,

473-75 (4th Cir. 2007).

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Burt’s conviction and sentence. This court

requires that counsel inform Burt, in writing, of the right to

petition the Supreme Court of the United States for further

review. If Burt 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 Burt.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

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before the court and argument would not aid the decisional

process.

AFFIRMED