UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4392
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH LEE GARDNER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00063-MR-DCK-1)
Submitted: July 28, 2011 Decided: August 5, 2011
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Kenneth Lee
Gardner pled guilty to conspiracy to possess with intent to
distribute 500 grams of cocaine or less, in violation of 21
U.S.C. § 846 (2006). He was sentenced to 120 months in prison.
Gardner now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
questioning whether the plea was voluntary and the sentence
reasonable but stating that there are no meritorious issues for
appeal. Gardner has filed a pro se brief raising an additional
issue. We affirm.
I
After reviewing the transcript of Gardner’s Fed. R.
Crim. P. 11 proceeding, we conclude that the district court
fully complied with the Rule and that the guilty plea was
knowingly and voluntarily entered. Gardner was forty-six when
he entered his plea, had completed the eleventh grade and earned
a GED, and had attended classes to learn several trades. He had
not ingested alcohol or medication other than that prescribed
for his blood pressure and his mind was clear. He represented
to the court that he had discussed his case and his plea
agreement with his attorney, with whose services he was
satisfied.
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Gardner understood that any false statement might
subject him to a perjury prosecution. He also understood the
various trial rights he waived by pleading guilty, the elements
of the offense, the penalties to which he was subject, and the
applicability of the sentencing guidelines. Gardner agreed that
the United States’ summary of the plea agreement was accurate.
He told the court that his guilty plea was not the result of
threats, coercion or promises other than those contained in the
plea agreement.
II
Our review of the record convinces us that the 120-
month sentence is procedurally and substantive reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007). Gardner was
properly found to be a career offender, with a resulting
advisory Guidelines range of 151-188 months. After hearing
argument from counsel and Gardner, and considering the 18 U.S.C.
§ 3553(a) (2006) factors, the court decided that a downward
variance was warranted, especially in light of Gardner’s minor
role in the conspiracy and the fact that his career offender
status was based on convictions from 1988. The court made the
required individualized assessment in imposing sentence and
sufficiently stated its reasons for the chosen, variant
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sentence. See United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
III
In his pro se brief, Gardner contends that, because
his Guidelines range was calculated based on his being a career
offender, the Government breached the plea agreement, which
provided for a base level of 24. He is incorrect. The plea
agreement, which Gardner signed and which he represented to the
court that he understood, plainly stated that base level 24
would apply but that if he were found to be a career offender,
his Guidelines range might be calculated based on that status.
IV
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. We therefore
affirm. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client 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 was served on the client. We deny the motion
to disclose grand jury materials and dispense with oral argument
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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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