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United States v. Makum McCollum, 14-4612 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 14-4612 Visitors: 23
Filed: Feb. 25, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4612 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MAKUM LAMONT MCCOLLUM, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:13-cr-01012-RBH-1) Submitted: February 12, 2015 Decided: February 25, 2015 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assi
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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4612


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MAKUM LAMONT MCCOLLUM,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-01012-RBH-1)


Submitted:   February 12, 2015            Decided:   February 25, 2015


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Makum         Lamont   McCollum       appeals       from      his       conviction      and

151-month       sentence         imposed    pursuant         to    his    guilty       plea    to

distribution of crack cocaine.                       On appeal, counsel has filed a

brief pursuant to Anders v. California, 
386 U.S. 738
(1967),

stating that he had found no meritorious grounds for appeal but

questioning whether the district court complied with Fed. R.

Crim.    P.     11     and   whether       the       district     court’s       sentence      was

reasonable.           Although advised of his right to do so, McCollum

did not file a supplemental pro se brief.                           The Government also

declined       to     file   a   brief.      After       a   thorough         review    of     the

record, we affirm.

      Prior      to    accepting     a     guilty      plea,      the    trial    court       must

conduct a plea colloquy in which it informs the defendant of,

and determines that the defendant understands, the nature of the

charge to which he is pleading guilty, 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); United States v. DeFusco, 
949 F.2d 114
, 116 (4th Cir.

1991).        The district court also must ensure that the defendant’s

plea is voluntary, was supported by a sufficient factual basis,

and     did     not    result      from     force,       threats,        or    promises        not

contained in the plea agreement.                        Fed. R. Crim. P. 11(b)(2),

(3); 
DeFusco, 949 F.2d at 119-20
.

                                                 2
      Because McCollum did not move to withdraw his guilty plea

in the district court or otherwise preserve any allegation of

Rule 11 error, the plea colloquy is reviewed for plain error.

United States v. General, 
278 F.3d 389
, 393 (4th Cir. 2002).

Our review of the record reveals that the district court fully

complied with Rule 11 in accepting McCollum’s guilty plea during

a   thorough       hearing.          Accordingly,           his       plea       was    knowing       and

voluntary, and, consequently, final and binding.                                         See United

States v. Lambey, 
974 F.2d 1389
, 1394 (4th Cir. 1992) (en banc).

      We review McCollum’s sentence for reasonableness, applying

a   deferential      abuse      of    discretion            standard.             Gall       v.    United

States,      
552 U.S. 38
,    46       (2007).         We       first       ensure       that    the

district     court    committed          no    “‘significant               procedural         error,’”

including      improper        calculation             of   the       Sentencing             Guidelines

range, insufficient consideration of the 18 U.S.C. § 3553(a)

(2012)     factors,       or      inadequate            explanation           of       the     sentence

imposed.       United States v. Lynn, 
592 F.3d 572
, 575 (4th Cir.

2010)    (quoting     
Gall, 552 U.S. at 51
).           During      the    district

court’s      explanation        of      a    selected        sentence,             while      it     must

consider the statutory factors and explain the sentence, it need

not “robotically tick” through every § 3353(a) factor on the

record,      particularly          when       imposing           a        sentence       within      the

properly calculated Guidelines range.                         United States v. Johnson,

445 F.3d 339
,    345      (4th     Cir.       2006).            At    the    same       time,    the

                                                   3
district court “must make an individualized assessment based on

the    facts      presented.”             
Gall, 552 U.S. at 50
.       “This

individualized assessment need not be elaborate or lengthy, but

it must provide a rationale tailored to the particular case at

hand     and    adequate      to    permit         meaningful        appellate     review.”

United    States v.      Carter,         
564 F.3d 325
,    330    (4th    Cir.   2009)

(internal quotation marks omitted).

       Here,     the     parties         agreed        that    the     Guidelines         were

appropriately calculated.                Further, the district court provided

adequate       explanation     of     its      sentence.        The    court      noted    the

seriousness of McCollum’s conduct, his past criminal history,

and the need for deterrence.                   The court explicitly stated that

it     considered      both     the       statutory        factors      and      McCollum’s

arguments for a variance and concluded that a sentence at the

bottom of the Guidelines range was appropriate.                               We therefore

conclude that the sentence is procedurally reasonable.

       When we find a sentence procedurally reasonable, we then

must    examine    its   substantive           reasonableness,         considering        “the

totality of the circumstances.”                      
Gall, 552 U.S. at 51
.                 The

sentence       imposed   must       be    “sufficient,         but    not   greater       than

necessary” to satisfy the purposes of sentencing.                                 18 U.S.C.

§ 3553(a).       A within-Guidelines sentence is presumed reasonable

on appeal, and the defendant bears the burden to “rebut the

presumption by demonstrating that the sentence is unreasonable

                                               4
when measured against the § 3553(a) factors.”                      United States v.

Montes-Pineda,     
445 F.3d 375
,    379     (4th    Cir.    2006)   (internal

quotation marks omitted).

       Here, McCollum’s sentence was within his Guidelines range.

While the court did not grant McCollum’s request for a variance,

the    court   reasonably     explained          that   McCollum’s     conduct     was

serious and that a longer sentence was advisable to deter any

further criminal conduct.           The record does not provide any basis

to overcome the presumption of reasonableness.                       Thus, we find

that the court’s sentence was substantively reasonable.

       Our review pursuant to Anders has revealed no meritorious

issues for review.       Accordingly, we affirm McCollum’s conviction

and sentence.     This Court requires that counsel inform McCollum

in writing of his right to petition the Supreme Court of the

United States for further review.                 If McCollum requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this Court for leave

to withdraw from representation.                  Counsel's motion must state

that a copy thereof was served on McCollum.                        We dispense with

oral   argument    because        the    facts    and     legal    contentions     are

adequately     presented    in     the    materials       before    this   Court   and

argument would not aid the decisional process.

                                                                            AFFIRMED



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