Filed: Nov. 20, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4140 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIZSHAMAYA A. GABLES, a/k/a K-K, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:06-cr-00735-PMD-3) Submitted: October 22, 2008 Decided: November 20, 2008 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4140 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KIZSHAMAYA A. GABLES, a/k/a K-K, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:06-cr-00735-PMD-3) Submitted: October 22, 2008 Decided: November 20, 2008 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished p..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4140
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIZSHAMAYA A. GABLES, a/k/a K-K,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-00735-PMD-3)
Submitted: October 22, 2008 Decided: November 20, 2008
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter S. Ameika, Summerville, South Carolina, for Appellant.
Alston Calhoun Badger, Jr., Assistant United States Attorney,
Charleston, South Carolina; Reginald I. Lloyd, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kizshamaya A. Gables, a/k/a K-K, appeals his
convictions for conspiring to make false statements with regard
to the acquisitions of firearms from licensed dealers, in
violation of 18 U.S.C. ' 922(a)(6) (2000), and dealing in
firearms without a license, in violation of 18 U.S.C.
' 922(a)(1)(A) (2000). Gables= attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). Although
concluding that there are no meritorious issues for appeal,
counsel questions whether the Fed. R. Crim. P. 11 hearing was
sufficient and whether the district court properly calculated
the advisory sentencing guidelines range. Gables has filed a
pro se supplemental brief in which he argues that the district
court erred by enhancing his offense level pursuant to U.S.
Sentencing Guidelines Manual (AUSSG@) ' 2K2.1(b)(1)(C) because
the factual determination underlying the enhancement is
incorrect and was not alleged in the indictment or proven to a
jury beyond a reasonable doubt. The Government declined to file
a brief. After a careful review of the record, we affirm.
I.
Because Gables did not move in the district court to
withdraw his guilty plea, alleged errors at the Rule 11 hearing
are reviewed for plain error. See United States v. Martinez,
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277 F.3d 517, 524-25 (4th Cir. 2002). Before accepting a plea,
the district court must ensure that the defendant understands
the nature of the charges against him, the mandatory minimum and
maximum sentences, and various other rights, so it is clear the
defendant is knowingly and voluntarily entering his plea. The
court also must determine whether there is a factual basis for
the plea. Fed. R. Crim. P. 11(b); United States v. DeFusco,
949
F.2d 114, 116 (4th Cir. 1991). Gables does not allege any
specific deficiency, and our review of the plea hearing
transcript reveals that the district court conducted a thorough
Rule 11 colloquy, ensuring that Gables= plea was knowing and
voluntary and that there was an independent factual basis for
the plea.
II.
After the Supreme Court=s decision in United States v.
Booker, 543 U.S. 220 (2005), a district court is no longer bound
by the range prescribed by the sentencing guidelines. United
States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). Under an
advisory guidelines scheme, a district court does not violate
the Sixth Amendment by making factual findings as to sentencing
factors by a preponderance of the evidence as long as the
fact-finding does not enhance the sentence beyond the maximum
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term specified in the substantive statute. See United States v.
Morris, 429 F.3d 65, 72 (4th Cir. 2005) (holding that ABooker
does not in the end move any decision from judge to jury, or
change the burden of persuasion@). Gables= argument that the
district court erred by sentencing him based upon facts not
alleged in the indictment or proven to a jury is thus meritless.
In considering the district court=s application of the
guidelines, we review factual findings for clear error and legal
conclusions de novo. United States v. Allen, 446 F.3d 522, 527
(4th Cir. 2006). Because Gables did not object to the district
court=s enhancement of his sentence pursuant to ' 2K2.1(b)(1)(C),
we review his claim for plain error. United States v. Olano,
507 U.S. 725, 732 (1993); United States v. Hughes,
401 F.3d 540,
547 (4th Cir. 2005). Under the plain error standard, Gables
must show: (1) there was error; (2) the error was plain; and
(3) the error affected his substantial rights.
Olano, 507 U.S.
at 732-34.
Gables presents only a bald assertion that the factual
basis for the enhancement is incorrect, without any evidence to
support his argument. Furthermore, his assertion contradicts
the version of the facts presented without objection at his plea
hearing. We accordingly conclude that Gables= argument that the
district court erred in applying the ' 2K2.1(b)(1)(C) enhancement
is likewise without merit.
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III.
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 Gables, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Gables 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 Gables.
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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