UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4156
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR PHILLIPS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00314-RBH-1)
Submitted: September 18, 2014 Decided: September 29, 2014
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Kimberly H. Albro, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbia,
South Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina; Stanley D.
Ragsdale, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to his written plea agreement, Omar Phillips
pled guilty to conspiracy to distribute 28 grams or more of
crack cocaine and 500 grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B) (2012) and 21 U.S.C. § 846
(2012). Phillips had negotiated an agreement pursuant to Fed.
R. Crim. P. 11(c)(1)(C), in which the parties stipulated that a
188-month sentence was appropriate. After reviewing the
presentence report, the court accepted the plea and imposed the
stipulated sentence. This appeal timely followed.
Phillips’ counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), averring that there are no
meritorious appellate issues but seeking review of the
conviction and sentence. Counsel notes, in the alternative,
that we lack jurisdiction to review Phillips’ sentence because
it was the result of a Rule 11(c)(1)(C) plea agreement.
Although advised of his right to do so, Phillips has not filed a
supplemental brief. The Government has not filed a response.
Finding no error, we affirm in part and dismiss in part.
Where, as here, a defendant has not moved to withdraw
his guilty plea, we review his plea hearing for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
To prevail under this standard, Phillips must establish that an
error occurred, this error was plain, and that it affected his
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substantial rights. United States v. Massenburg, 564 F.3d 337,
342–43 (4th Cir. 2009). Our review of the record confirms that
the district court fully complied with the mandates of Fed. R.
Crim. P. 11, ensuring that Phillips was competent to plead
guilty and that his guilty plea was knowing, voluntary, and
supported by an independent basis in fact. We therefore affirm
Phillips’ conviction.
Further, we agree with counsel that we lack
jurisdiction to review Phillips’ sentence. As the Tenth Circuit
has explained, the federal statute governing appellate review of
a sentence, see 18 U.S.C. § 3742(a), (c) (2012), limits the
circumstances under which a defendant may appeal a sentence to
which he stipulated in a Rule 11(c)(1)(C) plea agreement to
claims that his sentence “was (1) imposed in violation of the
law, (2) imposed as a result of an incorrect application of the
Guidelines, or (3) is greater than the sentence set forth in the
plea agreement.” United States v. Calderon, 428 F.3d 928, 932
(10th Cir. 2005). None of these exceptions apply here.
Phillips’ sentence was less than the applicable statutory
maximum of forty years’ imprisonment, see 21 U.S.C.
§ 841(b)(1)(B), and was precisely what he and the Government
agreed was appropriate. 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 — not
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on the district court’s calculation of the Guidelines. See
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).
Accordingly, review of Phillips’ sentence is precluded by
§ 3742(c)(1).
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
therefore affirm Phillips’ conviction and dismiss this appeal as
to his sentence. We deny Phillips’ motion for the preparation
of transcripts at Government expense. This court requires that
counsel inform Phillips, in writing, of his right to petition
the Supreme Court of the United States for further review. If
Phillips 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
Phillips. 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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