UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4084
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS DEWAYNE JONES, a/k/a LB, a/k/a Pounds, a/k/a Marcus
Dwayne Jones,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:10-cr-00524-CMC-1)
Submitted: January 30, 2012 Decided: February 17, 2012
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Janis Richardson Hall, Greenville, South Carolina, for
Appellant. Robert Frank Daley, Jr., Assistant United States
Attorney, James Chris Leventis, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus DeWayne Jones pled guilty pursuant to a plea
agreement and was sentenced to 324 months in prison for one
count of conspiracy to possess with intent to distribute and to
distribute 500 grams or more of cocaine and five grams or more
of cocaine base, in violation of 21 U.S.C.A. §§ 841(a)(1),
841(b)(1)(A), 846 (West 1999 & Supp. 2011). Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that he has reviewed “both the facts and legal issues
of this case” and is of the opinion “that there are no legal
issues that were not properly raised or disposed of by the trial
[c]ourt” and “no grounds for an appeal[.]” Counsel nonetheless
suggests that the district court erred in determining the drug
weight to attribute to Jones because inadequate proof was
offered to support the district court’s calculation.
Jones has filed an extensive pro se supplemental brief
in which he raises several issues, including alleging that: (1)
the Government did not establish a factual basis for his
offense; (2) his guilty plea was based on counsel’s erroneous
advice; and (3) the district court erred in calculating his
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Guidelines range. * The Government has declined to file a
responsive brief. Finding no error, we affirm.
First, we reject Jones’ challenges to the
voluntariness of his guilty plea. Prior to accepting a guilty
plea, a trial court, through colloquy with the defendant, must
inform the defendant of, and determine that the defendant
understands the nature of, the charges to which the plea is
offered, any mandatory minimum penalty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b). “In reviewing the
adequacy of compliance with Rule 11, this Court should accord
deference to the trial court’s decision as to how best to
conduct the mandated colloquy with the defendant.” United
States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).
Because Jones did not move the district court to
withdraw his guilty plea, any errors in the Rule 11 hearing are
reviewed for plain error. United States v. Martinez, 277 F.3d
517, 525 (4th Cir. 2002). “To establish plain error, [Jones]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” United States
v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). Even if Jones
*
We have considered all of the arguments raised in Jones’
pro se supplemental brief and conclude they lack merit.
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satisfies these requirements, we retain discretion to correct
the error, which we should not exercise unless the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings. Id.
A review of the record reveals that the district court
complied with Rule 11’s requirements, ensuring that Jones’ plea
was knowing and voluntary, that he understood the rights he was
giving up by pleading guilty and the sentence he faced, and that
he committed the offense to which he pled guilty. Accordingly,
we discern no error in the district court’s acceptance of Jones’
guilty plea as knowing and voluntary.
We also find no error in Jones’ sentence. After
United States v. Booker, 543 U.S. 220 (2005), we review a
sentence for reasonableness, using an abuse of discretion
standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires the court to
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 160-61
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2011)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence — including an
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explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, [this court] review[s] for abuse of discretion” and will
reverse unless the court can conclude “that the error was
harmless.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010). If, and only if, this court finds the sentence
procedurally reasonable can the court consider the substantive
reasonableness of the sentence imposed. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
We discern no procedural or substantive sentencing
error by the district court. Most notably, a review of Jones’
sentencing hearing establishes that the district court correctly
attributed him with a total offense level of thirty-eight based
on evidence presented at sentencing establishing that Jones
should be held accountable for more than 4.5 kilograms of
cocaine base. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(1) (2010) (providing a level thirty-eight offense
level for offense involving 4.5 kilograms or more of cocaine
base). In conjunction with Jones’ criminal history category of
IV, and after the district court granted Jones’ motion for a
variant sentence, Jones’ Guidelines range was reduced to 324 to
405 months in prison.
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After affording counsel an adequate opportunity to
argue regarding an appropriate sentence under the § 3553(a)
factors, and giving Jones an opportunity to allocute, the
district court sentenced Jones to 324 months in prison based on
several enumerated factors. The district court’s explanation
for Jones’ sentence allows for sufficient appellate review. See
Carter, 564 F.3d at 328 (“[T]he district court must state in
open court the particular reasons supporting its chosen
sentence” and “set forth enough to satisfy the appellate court
that [it] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority”) (internal quotation marks omitted). Having failed
to rebut the presumption this court affords within-Guidelines
sentences, we find that Jones’ 324-month sentence is reasonable.
See United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
We have examined the entire record in accordance with
our obligations under Anders and have found no meritorious
issues for appeal. Accordingly, we affirm the district court’s
judgment. This court requires that counsel inform Jones, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Jones 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
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state that a copy thereof was served on Jones. 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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