UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4200
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERMAINE OTEASO OGATDES BENNETT, a/k/a Jermaine Oteaso
Bennett,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00210-TDS-1)
Submitted: August 19, 2011 Decided: August 26, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Lisa Blue Boggs, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Jermaine Oteaso
Ogatdes Bennett pled guilty to possession with intent to
distribute crack cocaine, 21 U.S.C. § 841(a)(1) (2006) (Count
One), and possession of firearms in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count
Two). He was sentenced to 135 months in prison on Count One and
120 months, consecutive, on Count Two. Bennett now appeals.
His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), questioning whether the Fair
Sentencing Act of 2010 (FSA) should apply retroactively.
Counsel concludes, however, that the issue is moot because
Bennett’s advisory Guidelines range was calculated based on
Guidelines promulgated pursuant to the FSA. Bennett was advised
of his right to file a pro se supplemental brief but did not
file such a brief. We affirm.
I
After reviewing the transcript of Bennett’s Fed. R.
Crim. P. 11 proceeding, we conclude that the district court
fully complied with the Rule. Further, Bennett’s plea was
knowing and voluntary and not the result of force, threats, or
promises other than those in the plea agreement. Finally, there
was a factual basis for the plea.
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II
Our review of the record convinces us that Bennett’s
sentence is procedurally and substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007). For the drug
offense, Bennett’s properly calculated advisory Guidelines range
was 121-155 months. With respect to that range, we agree with
the district court that the issue of retroactivity of the FSA is
moot because Bennett’s offense level was calculated using
Guidelines promulgated in accordance with the FSA. After
hearing argument from counsel and Bennett, and considering the
18 U.S.C. § 3553(a) (2006) factors, the court sentenced Bennett
within his Guidelines range to 135 months on Count One and to
the statutorily required consecutive, minimum sentence of ten
years on Count Two. The court made the required individualized
assessment in imposing sentence and sufficiently stated its
reasons for the chosen, variant sentence. See United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
III
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm. We deny counsel’s motion to withdraw.
This court requires that counsel inform Bennett, in writing, of
his right to petition the Supreme Court of the United States for
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further review. If Bennett requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may renew his motion to withdraw at that time.
Counsel’s motion must state that a copy was served on Bennett.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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