UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICOLE GOER,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Bruce H. Hendricks, District Judge. (2:13-cr-00977-BHH-4)
Submitted: October 18, 2018 Decided: October 22, 2018
Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy Ward Murphy, KOLB, MURPHY & GIVENS, ATTORNEYS AT LAW, LLC,
Sumter, South Carolina, for Appellant. Sean Kittrell, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicole Goer pleaded guilty to conspiracy to distribute heroin and distribution of
heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) & 846 (2012) and 21 U.S.C.
§ 841(b)(1)(C) (2012). The district court sentenced her to 36 months’ imprisonment.
Counsel has filed an Anders v. California, 386 U.S. 738 (1967) brief, finding no
meritorious issues, but questioning whether the court complied with Fed. R. Crim. P. 11
and whether the sentence is reasonable. Goer was informed of her right to file a pro se
supplemental brief, but has not done so. The Government declined to file a brief.
Finding no error, we affirm.
Prior to accepting a 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 she is pleading guilty, the maximum possible penalty she faces, and the
various rights she is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United
States v. 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 not contained in the plea agreement. Fed. R. Crim. P.
11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.
Because Goer did not move to withdraw her guilty plea in the district court or
otherwise preserve any allegation of Rule 11 error, we review the plea colloquy for plain
error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail on a claim
of plain error, [Goer] must demonstrate not only that the district court plainly erred, but
also that this error affected [her] substantial rights.” Id. at 816. In the guilty plea context,
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a defendant establishes that an error affected her substantial rights if she demonstrates a
reasonable probability that she would not have pleaded guilty but for the error. Id. The
record reveals that the district court conducted a sufficient plea colloquy with Goer.
Accordingly, we conclude that the district court did not plainly err in accepting Goer’s
guilty plea.
This court reviews a sentence for reasonableness, applying a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). We first review for
significant procedural errors, including whether the district court failed to calculate or
improperly calculated the Sentencing Guidelines range, treated the Guidelines as
mandatory, failed to consider the 18 U.S.C. § 3553(a) (2012) factors, or failed to
adequately explain its chosen sentence. Id. If we find the sentence procedurally
reasonable, we then examine substantive reasonableness, considering the totality of the
circumstances. Gall, 552 U.S. at 51. We presume that a sentence within or below the
Guidelines range is substantively reasonable. United States v. Louthian, 756 F.3d 295,
306 (4th Cir. 2014). “Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” Id.
We discern no error in the court’s rulings or its determination of the Guidelines
range. We also conclude that Goer fails to rebut the presumption that her
below-Guidelines-range sentence is substantively reasonable when measured against the
§ 3553(a) factors. See Louthian, 756 F.3d at 306. The district court responded to defense
counsel’s arguments for a lower sentence meaningfully, and explained its chosen
sentence. We conclude that Goer’s sentence is reasonable.
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In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Goer’s conviction and
sentence. This court requires that counsel inform Goer, in writing, of the right to petition
the Supreme Court of the United States for further review. If Goer 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 Goer.
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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