UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4768
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TOBIAS ROMELL JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:11-cr-02073-TLW-1)
Submitted: May 13, 2013 Decided: May 16, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina;
Robert Frank Daley, Jr., Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tobias Romell Jackson pled guilty to possession with
intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B) (2006). On appeal, Jackson’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for review
but questioning whether the district court substantially
complied with Fed. R. Crim. P. 11 at Jackson’s change of plea
hearing and whether his sentence is reasonable. Jackson filed a
pro se supplemental brief, arguing that the district court erred
when it denied his motion to suppress and sentenced him as a
career offender. Finding no error, we dismiss in part and
affirm in part.
Jackson first argues that the district court erred
when it determined that the Government did not violate the
Fourth Amendment’s prohibition against unreasonable searches and
seizures when police officers conducted an investigatory stop of
his vehicle and searched it based on narcotics in plain view
inside the car. Because Jackson entered a non-conditional
guilty plea without the benefit of a written plea agreement, we
hold that this claim is waived. “When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
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rights that occurred prior to the entry of the guilty plea.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973). “Thus, the
defendant who has pled guilty has no non-jurisdictional ground
upon which to attack [a] judgment except the inadequacy of the
plea, or the government’s power to bring any indictment at all.”
United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010)
(internal quotation marks and citation omitted). The right to
challenge on appeal a Fourth Amendment issue is a
nonjurisdictional defense and thus is forfeited by an
unconditional guilty plea. Haring v. Prosise, 462 U.S. 306, 320
(1983).
Next, we review Jackson’s change of plea hearing to
determine whether the district court substantially complied with
the requirements of Fed. R. Crim. P. 11. 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 charge 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)(1). The district court
also must ensure that the defendant’s plea was voluntary, was
supported by a sufficient factual basis, and did not result from
force or threats. Fed. R. Crim. P. 11(b)(2), (3). “In
reviewing the adequacy of compliance with Rule 11, this court
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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).
Upon review of the hearing, we conclude that the district court
satisfied the requirements of Fed. R. Crim. P. 11.
Finally, Jackson challenges both the procedural and
substantive reasonableness of his sentence. We review sentences
for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41, 51 (2007).
This review entails appellate consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51. In determining procedural reasonableness, we consider
whether the district court properly calculated the defendant’s
advisory Guidelines range, gave the parties an opportunity to
argue for an appropriate sentence, considered the 18 U.S.C.
§ 3553(a) factors, selected a sentence based on clearly
erroneous facts, and sufficiently explained the selected
sentence. Id. at 49-51.
Jackson contends that his sentence was procedurally
unreasonable because the Government failed to file a notice of
his prior convictions for the purpose of establishing Jackson’s
status as a career offender under United States Sentencing
Guidelines § 4B1.1 (2011). However, the government is not
required to notice convictions that it intends to use to enhance
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a defendant’s sentence under the Guidelines. See United
States v. Foster, 68 F.3d 86, 89 (4th Cir. 1995). Jackson also
argues that the district court should not have considered one of
his prior convictions because he was in the process of
challenging it in state court. Jackson does not claim that, at
the time he was sentenced, the conviction had been invalidated
by the state court. Therefore, he was not permitted to
challenge it at sentencing. See Custis v. United States, 511
U.S. 485, 493-97 (1994). If the sentence is free of significant
procedural error, we review it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.”
Gall, 522 U.S. at 51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts
presented,” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009) (internal quotation marks and emphasis omitted), and must
“adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50. If the sentence is within
the properly calculated Guidelines range, we apply a presumption
on appeal that the sentence is substantively reasonable. United
States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Such a presumption is rebutted only if the defendant shows “that
the sentence is unreasonable when measured against the § 3553(a)
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factors.” United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (internal quotation marks omitted).
The district court based its sentence on the
seriousness of Jackson’s drug trafficking crime. That fact,
together with Jackson’s numerous repeat offenses, led the
district court to impose its sentence based on the need to deter
Jackson and other offenders while protecting the public. The
district court accepted the recommendation of Jackson’s counsel
and imposed a sentence at the low end of the advisory Guidelines
range. Therefore, applying the presumption of reasonableness
that attaches to a within-Guidelines sentence, we conclude that
the district court’s sentence was substantively reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Jackson’s conviction and sentence. This
court requires that counsel inform Jackson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jackson 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 Jackson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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