UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA GANT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:14-cr-00437-JAB-1)
Submitted: November 24, 2015 Decided: January 5, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Gant, Jr., pled guilty pursuant to a written plea
agreement to one count of distribution of a mixture and
substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). The
district court imposed a within-Guidelines sentence of 24
months. In accordance with Anders v. California, 386 U.S. 738
(1967), Gant’s counsel has filed a brief certifying that there
are no meritorious issues for appeal, but suggesting that the
court review the reasonableness of Gant’s sentence. Gant has
filed a pro se supplemental brief arguing that (1) the district
court lacked jurisdiction over his offense because it occurred
entirely within North Carolina; (2) his sentence is
substantively unreasonable; and (3) his sentence is contrary to
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc).
Turning first to the validity of Gant’s guilty plea, to
assure that a defendant’s plea is knowing and voluntary, Fed. R.
Crim. P. 11 requires a district court to “inform the defendant
of, and determine that he understands, the nature of the
charge(s) to which the plea is offered, any mandatory minimum
penalty, the maximum possible penalty and various rights.”
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Where, as here, a defendant did not move to withdraw his guilty
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plea, we review the plea hearing for plain error. United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). A defendant
can only satisfy the plain error standard if he shows that, but
for an error by the district court during the Rule 11
proceeding, there is a reasonable probability that he would not
have entered his plea. United States v. Massenburg, 564 F.3d
337, 343 (4th Cir. 2009). Our review of the record reveals that
the district court substantially complied with Rule 11 by
ensuring that Gant was competent to plead guilty and that he
knowingly and voluntarily entered his guilty plea after
consultation with counsel. We further conclude that Gant’s
argument that the district court lacked jurisdiction to take his
guilty plea is without merit as Congress, pursuant to its
Commerce Clause power, may regulate the intrastate possession of
a controlled substance where there is an interstate market for
the controlled substance. Gonzales v. Raich, 545 U.S. 1, 17-22
(2005).
We review a sentence for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 46
(2007). We first review for significant procedural error, and
if the sentence is free from such error, we then consider
substantive reasonableness. Id. at 51. Procedural error
includes improperly calculating the Sentencing Guidelines range,
treating the Guidelines as mandatory, failing to consider the 18
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U.S.C. § 3553(a) (2012) factors, and failing to adequately
explain the selected sentence. Id. Substantive reasonableness
is determined by considering the totality of the circumstances,
and if the sentence imposed falls within or below the properly-
calculated Guidelines range, we apply a presumption of
reasonableness. United States v. Susi, 674 F.3d 278, 289 (4th
Cir. 2012). Our review of the record reveals neither a
procedural error nor anything overcoming the applicable
presumption of reasonableness that accompanies the district
court’s imposition of a within-Guidelines sentence. *
In accordance with Anders, we have reviewed the entire
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 Gant, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Gant 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 Gant.
*
Where Gant was neither subject to a mandatory minimum
penalty nor a sentencing enhancement, no rule of law established
in United States v. Simmons, 649 F.3d 237, is applicable to his
sentence.
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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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