UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4717
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY LAMONTT SMITH, a/k/a Marion Alexander Smith, Jr., a/k/a
Jermaine Arcel Turner, a/k/a G, a/k/a Black,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:11-cr-00472-PMD-1)
Submitted: July 24, 2014 Decided: July 28, 2014
Before FLOYD and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, dismissed in part, and remanded by unpublished
per curiam opinion.
Janis Richardson Hall, Greenville, South Carolina, for
Appellant. Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Lamontt Smith pled guilty, pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea agreement, to
conspiracy to possess with intent to distribute one kilogram or
more of heroin, in violation of 21 U.S.C. § 846 (2012). The
district court imposed the 228-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
Smith’s plea was knowing and voluntary. Smith 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 Smith 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, [Smith] 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 Smith 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
public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). Our review of the record
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leads us to conclude that the district court substantially
complied with Rule 11 in accepting Smith’s guilty plea, which
Smith entered knowingly and voluntarily. We therefore affirm
Smith’s conviction.
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 Smith’s
appeal of his sentence.
Accordingly, we affirm the judgment of the district
court with respect to Smith’s conviction and we dismiss the
appeal with respect to Smith’s sentence. We remand to the
district court with instructions to correct the judgment,
pursuant to Fed. R. Crim. P. 36, to reflect that the statute of
conviction is 21 U.S.C. § 846 (2012).
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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 Smith, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Smith 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 Smith.
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, AND REMANDED
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