UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LACY BLACKMON,
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-00332-TDS-18)
Submitted: January 26, 2012 Decided: February 1, 2012
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Neal G. Rosensweig, NEAL GARY ROSENSWEIG, P.A., Hollywood,
Florida, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lacy Blackmon appeals his conviction and 112-
month sentence after pleading guilty to conspiracy to distribute
100 kilograms or more of marijuana, in violation of 21 U.S.C.A.
§§ 846, 841(b)(1)(A) (West 1999 & Supp. 2011). At sentencing,
Blackmon was designated as a career offender under U.S.
Sentencing Guidelines Manual § 4B1.1 (2010) based on two prior
North Carolina state convictions. On appeal, counsel for
Blackmon filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that there are no meritorious issues
for review. Blackmon was informed of his right to file a pro se
supplemental brief, but has not done so.
On December 23, 2011, the court ordered the parties to
file supplemental briefs addressing potential error in
Blackmon’s designation as a career offender. The parties did
not file supplemental briefs but instead filed a joint motion to
remand for resentencing in light of United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). For the following
reasons, we affirm Blackmon’s conviction, vacate his sentence,
and remand for resentencing.
Because Blackmon did not seek to withdraw his guilty
plea in the district court or otherwise preserve any alleged
error under Federal Rule of Criminal Procedure 11(b)(1) by
timely objection, review of his plea is for plain error. United
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States v. Martinez, 277 F.3d 517 (4th Cir. 2002). To establish
plain error, Blackmon “must show: (1) an error was made;
(2) the error is plain; and (3) the error affects substantial
rights.” United States v. Massenburg, 564 F.3d 337, 342-43 (4th
Cir. 2009). The district court found Blackmon competent to
plead guilty and that his plea was knowing and voluntary. The
court further found a factual basis for the plea. After a
thorough review of the plea colloquy, we conclude that the
district court complied with Rule 11 in accepting Blackmon’s
plea. We therefore affirm the conviction.
Turning to Blackmon’s sentence, this court’s review is
for both procedural and substantive reasonableness, applying the
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). First, the court must determine whether the
district court correctly calculated Blackmon’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2006)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). The parties have
filed a joint motion to remand for resentencing, asserting that
Blackmon no longer qualifies as a career offender under Simmons
and that the applicable Guidelines range was thus improperly
calculated. We find the parties’ position to be well taken and
we therefore grant the motion.
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Accordingly, we affirm the conviction, vacate the
sentence, and remand for resentencing. The court requires that
counsel inform Blackmon, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Blackmon so requests but counsel believes any such petition to
be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Blackmon. 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 IN PART,
VACATED IN PART,
AND REMANDED
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