United States v. Mario Quiller

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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