UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4717
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHOUNG PHAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:07-cr-00360-NCT-1; 1:07-cr-
00373-NCT-1)
Submitted: January 18, 2011 Decided: May 31, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Graham Tod Green, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phoung Phan appeals his convictions and the 168-month
sentence imposed by the district court following his guilty
pleas to conspiracy to possess with intent to distribute
ecstasy, and conspiracy to distribute 100 or more kilograms of
marijuana, all in violation of 21 U.S.C. §§ 841, 846 (2006).
Phan’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) asserting that, in her opinion,
there are no meritorious issues for appeal. Phan was notified
of his right to file a pro se supplemental brief, but has not
filed a brief. The Government declined to file a brief. We
affirm.
Because Phan did not move in the district court to
withdraw his guilty plea, we review the Fed. R. Crim. P. 11
hearing for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Phan]
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). Our review of
the record leads us to conclude that the district court
substantially complied with Rule 11, and that Phan’s guilty plea
was knowing and voluntary.
We review Phan’s sentence for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). The first step
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in this review requires us to ensure that the district court
committed no significant procedural error. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008). Significant
procedural errors include “‘failing to calculate (or improperly
calculating) the Guidelines range, . . . failing to consider the
[18 U.S.C.] § 3553(a) factors, . . . or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.’” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at
51). We then consider the substantive reasonableness of the
sentence, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. When reviewing a sentence on appeal, we
presume a sentence within the properly-calculated Guideline
range is reasonable. United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007). Our review of the record leads us to conclude
that the district court properly determined the Guidelines range
and committed no procedural error. Phan’s sentence was at the
bottom of the Guidelines range and is thus substantively
reasonable.
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 district court’s judgment.
This court requires that counsel inform Phan in writing of his
right to petition the Supreme Court of the United States for
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further review. If Phan 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 Phan.
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 the decisional
process.
AFFIRMED
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