UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4465
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY RICHARD LACKEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:11-cr-00052-RLV-1)
Submitted: January 11, 2013 Decided: January 17, 2013
Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Noell P. Tin, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Richard Lackey pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
and aiding and abetting the distribution of a Schedule I
controlled substance, in violation of 18 U.S.C. § 2 (2006); 21
U.S.C.A. §§ 841(a), 841(b)(1)(B) (West 1999 & Supp. 2012), and
was sentenced to 120 months in prison. Lackey’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), stating there are no meritorious grounds for appeal,
but raising as possible issues for review whether the district
court complied with Fed. R. Crim. P. 11 when it accepted
Lackey’s guilty plea and whether Lackey’s sentence is
reasonable. Lackey filed a pro se supplemental brief in which
he asserts that counsel rendered ineffective assistance because
he allegedly failed to explain the ramifications of 21 U.S.C.
§ 851 (2006) “and it’s [sic] affect on his statutory mandatory
minimum sentence and/or the Guidelines[.]” The Government has
declined to file a responsive brief. Finding no error, we
affirm.
Because Lackey 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, 525-26 (4th Cir. 2002). “To establish plain error,
[Lackey] must show that an error occurred, that the error was
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plain, and that the error affected his substantial rights.”
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Even if Lackey 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 establishes that the district
court complied with Rule 11’s requirements, ensuring that
Lackey’s 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 was
pleading guilty. Accordingly, we affirm Lackey’s conviction.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
that we ensure the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(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. 2012)] 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, we review for abuse of discretion” and will reverse
unless we can conclude “that the error was harmless.” United
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For
instance, if “an aggrieved party sufficiently alerts the
district court of its responsibility to render an individualized
explanation” by drawing arguments from § 3553 “for a sentence
different than the one ultimately imposed,” the party
sufficiently “preserves its claim.” Id. at 578. However, we
review unpreserved non-structural sentencing errors for plain
error. Id. at 576-77.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). This court presumes that a sentence within the
Guidelines range is reasonable. See United States v. Mendoza-
Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may and do
treat on appeal a district court’s decision to impose a sentence
within the Guidelines range as presumptively reasonable.”).
Our review of the record reveals no procedural error
in Lackey’s sentence. The district court adopted the proper
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Guidelines range calculation, properly considered the § 3553(a)
factors, and appropriately explained Lackey’s sentence.
We next consider the substantive reasonableness of the
sentence, taking into account the “totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Gall, 552 U.S. at 51. Where, as here, the
Government has not moved for a departure from the Guidelines
range due to the defendant’s substantial assistance, the
district court lacks discretion to impose a sentence below the
statutory minimum. United States v. Robinson, 404 F.3d 850, 862
(4th Cir. 2005). Moreover, the imposition of a statutory
mandatory minimum sentence is per se reasonable. United States
v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). In Lackey’s
case, his 120-month sentence was the minimum sentence required
by statute for the narcotics offense. See 21 U.S.C.A.
§§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2012). Accordingly,
we find that the sentence is substantively reasonable and
conclude that the district court committed no reversible error
in its imposition. *
*
To the extent that Lackey attempts to raise an ineffective
assistance of counsel claim based on his allegation that counsel
failed to explain to him the ramifications of § 851, we find
that ineffective assistance does not conclusively appear on the
record. See United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008) (holding that an ineffective assistance of counsel
claim is not cognizable on direct appeal “unless it conclusively
(Continued)
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Lackey, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Lackey 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 Lackey. 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
appears from the record that defense counsel did not provide
effective representation”) (internal citation omitted).
Although we note that an ineffective assistance of
counsel claim should generally be raised by a habeas corpus
motion under 28 U.S.C.A. § 2255 (West Supp. 2012), we intimate
no view as to the validity or lack of validity of such a claim.
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