UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4394
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY DYSON BELL, a/k/a Wu,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Florence.
R. Bryan Harwell, Chief District Judge. (4:18-cr-00931-RBH-1)
Submitted: February 28, 2020 Decided: March 27, 2020
Before DIAZ and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Elizabeth Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South
Carolina, for Appellant. Everett E. McMillian, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Dyson Bell appeals his conviction and 57-month sentence imposed
pursuant to his guilty plea to possession with intent to distribute and distribution of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2018). Bell’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal, but questioning whether the district court fully complied
with Fed. R. Crim. P. 11 and whether Bell’s sentence is reasonable. Although informed of
his right to do so, Bell did not file a pro se supplemental brief. The Government declined
to file a response. *
Counsel first questions whether the district court complied with Rule 11, but points
to no specific error. As Bell did not move to withdraw his guilty plea, we review the
adequacy of the Rule 11 hearing for plain error. United States v. Sanya, 774 F.3d 812, 815
(4th Cir. 2014). To prevail on a claim of plain error, Bell must demonstrate not only that
the court erred but that the error affected his substantial rights. Id. at 816.
Before accepting a guilty plea, the court must conduct a plea colloquy in which it
informs the defendant of, and determines he understands, the rights he is relinquishing by
pleading guilty, the charge to which he is pleading, and the maximum and mandatory
minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991). The court also must ensure that the plea was voluntary and
*
Because the Government fails to assert the appeal waiver, we may consider the
issues raised by counsel and conduct an independent review of the record pursuant to
Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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not the result of threats, force, or promises not contained in the plea agreement, Fed. R.
Crim. P. 11(b)(2), and “that there is a factual basis for the plea,” Fed. R. Crim. P. 11(b)(3).
We conclude that the district court substantially complied with Rule 11. Moreover,
the court ensured that Bell entered his plea knowingly and voluntarily and that a factual
basis supported the plea. See DeFusco, 949 F.2d at 116, 119-20. Because Bell has failed
to show that the district court’s acceptance of his guilty plea was improper, we affirm his
conviction.
Next, we review Bell’s 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 determining procedural reasonableness, we generally consider
whether the district court properly calculated the defendant’s advisory Sentencing
Guidelines range, considered the 18 U.S.C. § 3553(a) (2018) factors, analyzed any
arguments presented by the parties, and sufficiently explained the selected sentence. Id. at
51. “Regardless of whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an individualized assessment based on the
particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) (internal quotation marks omitted). As Bell did not preserve his procedural
reasonableness claim below, we review for plain error. See United States v. Lynn, 592 F.3d
572, 577-80 (4th Cir. 2010).
The district court properly calculated Bell’s advisory Guidelines range and
considered the § 3553(a) factors. However, the court did not provide an individualized
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assessment of the sentence it imposed. At sentencing, the court did not address how the
§ 3553(a) sentencing factors applied to Bell or his offense. Nevertheless, any error did not
affect Bell’s substantial rights, as the court imposed the exact within-Guidelines-range
sentence requested by Bell.
Because Bell’s sentence is procedurally reasonable, we next consider whether the
sentence imposed is substantively reasonable under “the totality of the circumstances.”
Gall, 552 U.S. at 51. We presume that a sentence within or below a properly calculated
Guidelines range is substantively reasonable. United States v. Vinson, 852 F.3d 333, 357
(4th Cir. 2017). 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. at 357-58
(internal quotation marks omitted). Here, Bell’s within-Guidelines-range sentence is
presumed reasonable. Because Bell does not argue that his sentence is substantively
unreasonable, he has failed to rebut the presumption. We therefore affirm Bell’s sentence.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Bell, in writing, of the right to petition the Supreme
Court of the United States for further review. If Bell 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 Bell. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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