Filed: Jun. 02, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4029 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BENNY WAYNE FRANKLIN, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:07-cr-00428-WO-1) Submitted: April 22, 2010 Decided: June 2, 2010 Before TRAXLER, Chief Judge, and MOTZ and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Charle
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4029 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BENNY WAYNE FRANKLIN, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:07-cr-00428-WO-1) Submitted: April 22, 2010 Decided: June 2, 2010 Before TRAXLER, Chief Judge, and MOTZ and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4029
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BENNY WAYNE FRANKLIN,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:07-cr-00428-WO-1)
Submitted: April 22, 2010 Decided: June 2, 2010
Before TRAXLER, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, North
Carolina, for Appellant. Sandra Jane Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benny Wayne Franklin pled guilty, pursuant to a
written plea agreement, to conspiracy to manufacture and
distribute 500 grams or more of methamphetamine and to possess
pseudoephedrine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (2006). The district court sentenced Franklin to
360 months’ imprisonment. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal. We affirm.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Our review of the transcript of the guilty plea hearing leads us
to conclude that the district court substantially complied with
the mandates of Fed. R. Crim. P. 11 in accepting Franklin’s
guilty plea and that Franklin’s substantial rights were not
infringed. Critically, the transcript reveals that the district
court ensured the plea was supported by an independent factual
basis and that Franklin entered the plea knowingly and
voluntarily with an understanding of the consequences.
See United States v. DeFusco, 949 F.2d 114, 116, 119-20
(4th Cir. 1991).
Turning to Franklin’s sentence, we review it under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
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“must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant § 3553(a) factors
to the specific circumstances of the case before it.” United
States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks and emphasis omitted). The court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” this court
that it has “considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.”
Id. (internal quotation marks omitted).
Once we have determined that the sentence is free of
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. If the
sentence is within the appropriate Guidelines range, this court
applies a presumption on appeal that the sentence is reasonable.
See United States v. Go,
517 F.3d 216, 218 (4th Cir. 2008).
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In this case, the district court correctly calculated
the advisory Guidelines range and heard argument from Franklin’s
counsel and allocution from Franklin. Although the court
committed procedural error in failing to provide an
individualized assessment of Franklin’s case, we conclude that
the court’s omission did not affect Franklin’s substantial
rights. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir.
2010). Furthermore, neither counsel nor Franklin has put forth
any factors to overcome the appellate presumption of
reasonableness afforded Franklin’s within-Guidelines sentence.
Accordingly, we conclude that the district court did not abuse
its discretion in sentencing Franklin.
Finally, after review of Franklin’s pro se brief, we
conclude that it raises no meritorious issues for appeal. We
therefore affirm the district court’s judgment and deny
Franklin’s motions to withdraw the Anders brief and to appoint
counsel. This court requires that counsel inform Franklin, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Franklin 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 Franklin.
4
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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