UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY ARTHUR BYRD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:12-cr-00797-RMG-1)
Submitted: January 9, 2014 Decided: January 17, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Beattie B. Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South
Carolina, for Appellant. Nathan S. Williams, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Arthur Byrd pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
marijuana and aiding and abetting, in violation of 18 U.S.C.
§§ 2, 841(a)(1), (b)(1)(D) (2012), and one count of using and
carrying a firearm during and in relation to and possessing a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. §§ 2, 924(c)(1) (2012). The district court
calculated Byrd’s Guidelines range on the marijuana count at
twenty-seven to thirty-three months’ imprisonment and Guidelines
sentence on the firearm count at a consecutive term of sixty
months’ imprisonment, U.S. Sentencing Guidelines Manual (2012),
and sentenced Byrd to thirty-three months’ imprisonment on the
marijuana count and a consecutive term of sixty months’
imprisonment on the firearm count.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but raising as issues for
review whether the district court reversibly erred in accepting
Byrd’s guilty plea and abused its discretion in imposing
sentence. Byrd was informed of his right to file a pro se
supplemental brief, but he has not done so. The Government
declined to file a brief and does not seek to enforce the appeal
waiver in Byrd’s plea agreement. We affirm.
2
Because Byrd did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error only. United States v.
Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993).
In the guilty plea context, a defendant meets his burden to
establish that a plain error affected his substantial rights by
showing a reasonable probability that he would not have pled
guilty but for the district court’s Rule 11 omissions.
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea
hearing leads us to conclude that the district court
substantially complied with the mandates of Rule 11 in accepting
Byrd’s guilty plea and that the court’s omissions did not affect
Byrd’s substantial rights. Critically, the transcript reveals
that the district court ensured that the plea was supported by
an independent basis in fact, and that Byrd entered the plea
knowingly and voluntarily with an understanding of the
consequences. United States v. DeFusco, 949 F.2d 114, 116, 120
(4th Cir. 1991). Accordingly, we discern no plain error in the
district court’s acceptance of Byrd’s guilty plea.
3
Turning to Byrd’s sentence, we review it for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence.
Id. at 51. In determining procedural reasonableness, we
consider whether the district court properly calculated the
defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence. Id. at 49–51.
If the sentence is free of “significant procedural
error,” we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
If the sentence is within the properly calculated Guidelines
range, we apply a presumption on appeal that the sentence is
substantively reasonable. United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012). Such a presumption is rebutted only if the
defendant shows “that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
4
In this case, the district court correctly calculated
and considered the advisory Guidelines range and sentence and
heard argument from counsel and allocution from Byrd. The court
explained that the sentence of ninety-three months’ imprisonment
was warranted in light of the nature and circumstances of Byrd’s
offense conduct, his history and characteristics, and the need
for the sentence to reflect the seriousness of Byrd’s offense
conduct, to promote respect for the law, to provide just
punishment, and to protect the public from further crimes by
Byrd. Byrd does not offer any grounds to rebut the presumption
on appeal that his within-Guidelines sentence is substantively
reasonable. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Byrd.
Finally, in accordance with Anders, we have reviewed
the remainder of the 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 Byrd,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Byrd 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 Byrd.
5
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
6