UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH DARNELL GRAY, a/k/a Killa,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00188-FDW-DSC-14)
Submitted: February 27, 2014 Decided: March 4, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, 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Unpublished opinions are not binding precedent in this circuit.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:
Joseph Darnell Gray pled guilty, pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea agreement, to
conspiracy to participate in racketeering activity, in violation
of 18 U.S.C. § 1962(d) (2012), and conspiracy to commit murder
in aid of racketeering activity, in violation of 18 U.S.C.
§ 1959(a)(5) (2012). The district court imposed the 180-month
sentence specified in the plea agreement. On appeal, counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for
appeal, but questioning whether Gray’s plea was knowing and
voluntary. Gray was advised of his right to file a pro se
supplemental brief, but has not filed one. The Government
declined to file a brief.
Because Gray did not move in the district court to
withdraw his guilty plea, we review the guilty plea hearing for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “To establish plain error, [Gray] 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). Even if Gray satisfies these
requirements, “correction of the error remains within [the
court’s] discretion, which [the court] should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
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public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). Our review of the record
leads us to conclude that the district court fully complied with
Rule 11 in accepting Gray’s guilty plea, which Gray entered
knowingly and voluntarily. We therefore affirm Gray’s
convictions.
Subject to narrow exceptions, a defendant who agrees
to and receives a particular sentence pursuant to Rule
11(c)(1)(C), may not appeal that sentence. 18 U.S.C. § 3742(a)
(2012); United States v. Calderon, 428 F.3d 928, 932 (10th Cir.
2005). In this case, the district court imposed the specified
sentence, which did not exceed the statutory maximum. Moreover,
the sentence was not imposed as a result of an incorrect
application of the Sentencing Guidelines because it was based on
the parties’ agreement and not on the district court’s
calculation of the Guidelines. United States v. Brown, 653 F.3d
337, 339-40 (4th Cir. 2011); United States v. Cieslowski, 410
F.3d 353, 364 (7th Cir. 2005). We therefore dismiss Gray’s
appeal of his sentence.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
This court requires that counsel inform Gray, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Gray requests that a petition be filed, but
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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 Gray.
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 IN PART, DISMISSED IN PART
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