UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRY TAREZ DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:14-cr-00331-GRA-1)
Submitted: March 31, 2016 Decided: May 25, 2016
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Maxwell B. Cauthen, III,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torry Tarez Davis pled guilty, without a plea agreement, to
possession with intent to distribute cocaine base and marijuana,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(D)
(2012). The district court sentenced Davis to 151 months’
imprisonment. 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 the
district court provided a reasoned basis for Davis’ sentence.
Davis filed a supplemental pro se brief, asserting that his
attorney and the Government failed to alert him to the
consequences of his guilty plea, disputing the reasonableness of
his sentence, and raising evidentiary issues. After careful
consideration of the entire record, we affirm.
Prior to accepting a defendant’s guilty plea, a court must
conduct a plea colloquy in which it informs the defendant of,
and determines that the defendant understands, the nature of the
charge to which he is pleading guilty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. * Fed. R. Crim. P. 11(b)(1); United States v.
*The plea hearing in this case took place before we issued
United States v. Murraye, 596 F. App’x 219 (4th Cir. 2015),
which once again criticized the practice of relying on the
prosecutor and a written plea petition to convey and solicit the
information specified by Rule 11. But, even assuming the
(Continued)
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DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court
also must ensure that the defendant’s plea is voluntary,
supported by a sufficient factual basis, and not the result of
force, threats, or promises outside of a plea agreement with the
Government. Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at
119-20. Because Davis did not pursue a motion to withdraw his
guilty plea in the district court or otherwise preserve any
allegation of Rule 11 error, the plea colloquy is reviewed for
plain error. United States v. Sanya, 774 F.3d 812, 815 (4th
Cir. 2014). Davis’ contention that he was not alerted to the
consequences of pleading guilty is belied by the record, which
demonstrates that he was informed of the maximum sentence he
faced and the possible applicability of the career offender
designation under U.S. Sentencing Guidelines Manual § 4B1.1
(2014).
Next, we review Davis’ sentence for reasonableness,
applying “a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In assessing
district court similarly and improperly delegated the task of
conducting the Rule 11 colloquy in this case, we conclude Davis’
rights were not substantially affected by the error.
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procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Sentencing
Guidelines range, gave the parties an opportunity to argue for
an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected
sentence. Gall, 552 U.S. at 49-51. If there are no procedural
errors, we then consider the substantive reasonableness of a
sentence, evaluating “the totality of the circumstances.” Id.
at 51. A sentence is presumptively reasonable if it is within
the Guidelines range, and this “presumption can only be rebutted
by showing that the sentence is unreasonable when measured
against the 18 U.S.C. § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014).
After adopting the correctly calculated offense level,
criminal history category, and Guidelines range contained in
Davis’ presentence report, the district court heard arguments
from both parties and considered Davis’ allocution. Contrary to
Davis’ contention, we find nothing inflammatory in the
Government’s sentencing argument. The court then issued an
individualized sentence, explicitly grounded in the § 3553(a)
factors. Davis’ 151-months sentence, which fell at the bottom
of the applicable Sentencing Guidelines range, is presumptively
reasonable and Davis has failed to rebut this presumption.
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Further, we conclude that Davis’ remaining pro se
arguments, which he raises for the first time on appeal, have
been waived. United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993) (“A voluntary and intelligent plea of guilty is an
admission of all the elements of a formal criminal charge, and
constitutes an admission of all material facts alleged in the
charge. Furthermore, a guilty plea constitutes a waiver of all
nonjurisdictional defects.” (internal citations and quotation
marks omitted)).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Davis’ conviction and sentence.
This court requires that counsel inform Davis, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Davis 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 Davis.
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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