UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4994
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA DYLAN BENNETT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00186-CCE-3)
Submitted: October 3, 2014 Decided: October 9, 2014
Before SHEDD, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Josiah J. Corrigan, Jacob P. Warner, PERRY, PERRY & PERRY,
Kinston, North Carolina, for Appellant. Graham Tod Green,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Dylan Bennett pled guilty pursuant to a plea
agreement to conspiracy to distribute fifty grams or more of
methamphetamine and to possess pseudoephedrine knowing and
having reasonable cause to believe it would be used to
manufacture methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(B), (c)(2), 846 (2012). The district court
calculated Bennett’s Guidelines range at sixty to seventy-one
months’ imprisonment, U.S. Sentencing Guidelines Manual (2012),
and, after granting a downward variance for substantial
assistance to the Government, sentenced Bennett to forty-five
months’ imprisonment.
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
Bennett’s guilty plea and abused its discretion in imposing
sentence. Counsel also questions whether trial counsel rendered
ineffective assistance at sentencing. Bennett 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. We affirm.
Because Bennett 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.
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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
Bennett’s guilty plea and that the court’s omissions did not
affect Bennett’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 Bennett
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 Bennett’s guilty
plea.
Turning to Bennett’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).
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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 below 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,
289-90 (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).
In this case, the district court correctly calculated
and considered the advisory Guidelines range, heard argument
from counsel, and afforded Bennett the opportunity to allocute.
The court explained that the forty-five-month sentence was
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warranted in light of the nature and circumstances of Bennett’s
offense conduct and his history and characteristics. 18 U.S.C.
§ 3553(a)(1). Bennett does not offer any grounds to rebut the
presumption on appeal that his below-Guidelines sentence is
substantively reasonable. Accordingly, we conclude that the
district court did not abuse its discretion in sentencing
Bennett.
Bennett also questions whether trial counsel rendered
ineffective assistance at sentencing. After review of the
record, we find this claim inappropriate for resolution on
direct appeal. Because the record does not conclusively
establish ineffectiveness of counsel, Bennett must assert such a
claim, if at all, in a motion pursuant to 28 U.S.C § 2255
(2012). United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
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
Bennett, in writing, of the right to petition the Supreme Court
of the United States for further review. If Bennett requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
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for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Bennett.
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
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