UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4906
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO MONTAY QUILLER, a/k/a Mecca,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00295-BR-1)
Submitted: August 27, 2012 Decided: September 11, 2012
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Montay Quiller pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess
with intent to distribute more than fifty grams of cocaine base,
in violation of 21 U.S.C. § 846 (2006), and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006). In exchange for his plea the
Government dismissed the remaining six charges. On appeal,
counsel has submitted a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting there are no meritorious
arguments for appeal. Quiller filed a pro se supplemental
brief, asserting that the Rule 11 hearing was flawed because he
was not informed of the correct minimum or maximum sentence
under the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124
Stat. 2372 (“FSA”). The Government did not file a brief. * We
affirm.
*
In the plea agreement, Quiller waived his right to appeal
whatever sentence was imposed. However, the Government has
elected not to seek enforcement of the waiver. It is this
court’s policy not to raise the issue sua sponte. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000));
see United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007) (stating that, if Anders brief is filed in case with
appeal waiver, the Government’s failure to respond “allow[s]
this court to perform the required Anders review”).
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After reviewing the record, we conclude that Quiller’s
Rule 11 hearing was sufficient and proper. At the time that
Quiller pled guilty, which was after the FSA’s effective date,
the FSA was not being applied retroactively to those defendants
whose criminal conduct occurred prior to the enactment of the
FSA but were sentenced after the FSA’s effective date. At
sentencing, Quiller’s counsel argued that the reduced statutory
sentence contained in the FSA should apply to Quiller. In light
of the Attorney General’s revised view that the FSA should apply
retroactively, the district court agreed. Quiller was thus
exposed to a maximum statutory sentence of forty years instead
of life.
While the appeal was pending, the Supreme Court ruled
in Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012), that
the FSA was applicable to persons in Quiller’s situation: the
criminal conduct occurred prior to the FSA’s effective date but
sentencing occurred after the Act’s effective date.
Needless to say, Quiller, who successfully argued at
sentencing for the FSA’s reduced statutory penalties, did not
assert at any time before the imposition of sentence that the
Rule 11 hearing was flawed due to misinformation about the
maximum sentence. Accordingly, review is for plain error. See
United States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002).
Under plain error review, Quiller must show there was error,
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that error was plain, and that error was material or affected
his substantial rights. Even if he satisfies these conditions,
the court will use its discretion and correct the error only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Id. at 524. Additionally,
to show that a Rule 11 violation was plain error, Quiller must
demonstrate that he would not have entered the plea. Id. at
532.
We conclude that Quiller’s substantial rights were not
affected. By virtue of pleading guilty and not proceeding to
trial, Quiller received the benefit of the dismissal of six
counts and a reduced offense level based on acceptance of
responsibility. Quiller, who had an extensive criminal history,
also faced the possibility of a life sentence for the firearm
conviction if it was found that he was an armed career criminal.
Accordingly, we conclude there was no plain error and affirm
Quiller’s convictions.
This court reviews a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Layton, 564
F.3d 330, 335 (4th Cir. 2009). In so doing, the court first
examines the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
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to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51. The court then
considers the substantive reasonableness of the sentence, taking
into account the totality of the circumstances. United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
If the sentence is within the Guidelines range, this court
presumes on appeal that the sentence is reasonable. United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.
United States, 551 U.S. 338, 346-56 (2007) (permitting appellate
presumption of reasonableness for within-Guidelines sentence).
We conclude that the district court properly
determined the Guidelines sentence. With respect to the
district court’s explanation of the sentence, “[r]egardless 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); see Gall,
552 U.S. at 50. The reasons articulated for a given sentence
need not be “couched in the precise language of [18 U.S.C.]
§ 3553(a),” so long as the “reasons can be matched to a factor
appropriate for consideration . . . and [are] clearly tied [to
the defendant’s] particular situation.” United States v.
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Moulden, 478 F.3d 652, 658 (4th Cir. 2007). The district
court’s explanation need not be extensive, so long as this court
is satisfied “‘that the district court has considered the
parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority.’” United States v. Engle,
592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at 356
(alterations omitted)), cert. denied, 131 S. Ct. 165 (2010).
We have reviewed the sentencing transcript and the
district court’s statement of reasons and conclude that the
court considered the arguments raised by the parties and adopted
the Government’s position as acceptable. In so doing, the court
acknowledged its inclination to sentence Quiller to the high end
of the Guidelines and yet sentenced Quiller to the middle of the
sentencing range, consistent with the Government’s request.
Accordingly, we conclude that Quiller’s sentence was
both procedurally and substantively reasonable. United
States v. Wright, 594 F.3d 259, 267-68 (4th Cir.), cert. denied,
131 S. Ct. 507 (2010); see Rita, 551 U.S. at 347 (upholding
rebuttable presumption of reasonableness for within-Guidelines
sentence).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Quiller’s convictions and sentence. This
court requires counsel inform Quiller, in writing, of the right
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to petition the Supreme Court of the United States for further
review. If Quiller 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 Quiller. 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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