UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5088
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH LARKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:08-cr-00098-MBS-1)
Submitted: July 29, 2011 Decided: August 11, 2011
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. John David Rowell, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Larkins pled guilty, pursuant to a written plea
agreement, to possession with intent to distribute and
distribution of five grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) (2006). Larkins was sentenced to the
statutory mandatory minimum of 120 months’ imprisonment. See 21
U.S.C.A. § 841(b)(1)(B) (West 1999 & Supp. 2009) (prescribing
ten-year minimum for cases involving five grams or more of
cocaine base and prior felony drug conviction) (current version
at 21 U.S.C.A. § 841(b)(1)(B) (West Supp. 2011)). Appellate
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), in which he asserts there are no meritorious issues
for appeal but questions the adequacy of the Fed. R. Crim. P. 11
hearing and whether the sentence is reasonable. Larkins has
filed pro se supplemental briefs, asserting numerous issues. 1
Finding no error, we affirm.
1
Larkins alleged that (1) the district court lacked
subject-matter jurisdiction because there were no interstate
commerce facts alleged in the indictment; (2) the Controlled
Substances Act is unconstitutional, both generally and as
applied to his case, as it exceeds Congress’ power under the
Commerce Clause; (3) the doctrine derived from Rooker v. Fid.
Trust Co., 263 U.S. 413 (1923), and D.C. Ct. App. v. Feldman,
460 U.S. 462 (1983), divests this court of jurisdiction because
the state dismissed its pending drug charges, which arose out of
the same criminal conduct; (4) the time limits in Fed. R. App.
P. 4(b)(1)(A) are unconstitutional; (5) the district court
failed to comply with the requirement in Rule 11 that a court
“address the defendant personally in open court,” see Fed. R.
(Continued)
2
Initially, counsel questions whether the district
court complied with the requirements of Rule 11 but points to no
specific error by the court. 2 As Larkins did not seek to
withdraw his guilty plea in the district court or otherwise
preserve any alleged Rule 11 error by timely objection, review
by the court is for plain error. United States v. Dominguez
Benitez, 542 U.S. 74, 76 (2004); United States v. Martinez, 277
F.3d 517, 524-25 (4th Cir. 2002). To establish plain error, the
defendant must show that an error occurred, that the error was
plain, and that the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732-34 (1993); United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009)
(stating that defendant bears burden of establishing each of the
plain error requirements). We have reviewed the record and
Crim. P. 11(b)(1), prior to accepting a guilty plea; (6) the
district court failed to ensure that a factual basis supported
the guilty plea and that Larkins was competent to plead; and
(7) the Government failed to follow the notice requirements of
21 U.S.C. § 851 (2006). We have considered each of these issues
and conclude that they are not meritorious.
2
Because the Government has not sought enforcement of the
appellate waiver, we are not precluded from reviewing the claims
raised in this appeal. United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed
in case with appeal waiver, Government’s failure to respond
“allow[s] this court to perform the required Anders review”).
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conclude that the district court committed no reversible error
in conducting the Rule 11 hearing.
Counsel also questions whether the sentence imposed by
the district court is reasonable. Appellate review of a
district court’s imposition of a sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” is for
abuse of discretion. Gall v. United States, 552 U.S. 38, 41
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id. at
51. “Procedural reasonableness evaluates the method used to
determine a defendant’s sentence.” United States v. Mendoza-
Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), cert. denied, __ S.
Ct. __, 2011 WL 2037948 (U.S. June 23, 2011). In contrast,
“[s]ubstantive reasonableness examines 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 [18 U.S.C.] § 3553(a) [(2006)].” Id.
We must assess whether the district court properly
calculated the advisory Guidelines range, considered the
§ 3553(a) factors, analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 49-50; see also United States v. Lynn, 592
F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation
must accompany every sentence.”); United States v. Carter, 564
4
F.3d 325, 330 (4th Cir. 2009). We presume that a sentence
imposed within the properly calculated Guidelines range is
reasonable. Mendoza-Mendoza, 597 F.3d at 217. We have reviewed
the record with these standards in mind. Our examination leads
us to conclude that Larkins’ sentence is procedurally and
substantively sound. Therefore, the district court did not
abuse its discretion in imposing the chosen sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. 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 this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. 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 in the decisional process.
AFFIRMED
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