UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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