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United States v. Wright, 09-4638 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 09-4638 Visitors: 19
Filed: Oct. 14, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4638 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY DALE WRIGHT, a/k/a Ant, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:08-cr-01147-HMH-1) Submitted: July 30, 2010 Decided: October 14, 2010 Before NIEMEYER, MOTZ, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Lora E.
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                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4638


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY DALE WRIGHT, a/k/a Ant,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:08-cr-01147-HMH-1)


Submitted:   July 30, 2010                 Decided:   October 14, 2010


Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.     Leesa Washington, Assistant
United   States  Attorney,  Greenville,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Anthony      Dale   Wright          pled    guilty,        without         a     plea

agreement,        to    possession         with    intent          to    distribute            and

distribution       of    cocaine      base,       in     violation        of       21       U.S.C.

§ 841(a)(1) (2006), and possession of a firearm and ammunition

by   a   convicted      felon,   in   violation          of   18    U.S.C.      § 922(g)(1)

(2006).      The district court sentenced Wright to a total of 168

months’ imprisonment, the low end of the applicable Guidelines

range.    Finding no error, we affirm.

             Appellate counsel filed a brief pursuant to Anders v.

California, 
386 U.S. 738
(1967), in which she asserts there are

no meritorious issues for appeal but questions the adequacy of

the Fed. R. Crim. P. 11 hearing and whether the district court

committed plain error in sentencing Wright to the low end of the

applicable Guidelines range.                Wright was notified of his right

to file a pro se supplemental brief, but he has not done so.

The Government elected not to file a responsive brief.

             Initially,      counsel        questions         whether         the       district

court complied with the requirements of Rule 11 but identifies

no   error   on    the    court’s     part.        As     Wright        did    not      seek    to

withdraw     his   guilty    plea     in    the    district        court      or     otherwise

preserve any alleged Rule 11 error by timely objection, review

by this court is for plain error.                       United States v. Dominguez

Benitez, 
542 U.S. 74
, 76 (2004); United States v. Martinez, 277

                                             
2 F.3d 517
, 524 (4th Cir. 2002).                   To establish plain error, the

defendant must show that an error occurred, that the error was

plain,    and      that   the     error     affected     his    substantial         rights.

United    States     v.    Olano,     
507 U.S. 725
,   732-34    (1993);       United

States    v.    Massenburg,        
564 F.3d 337
,    342-43       (4th    Cir.       2009)

(stating    defendant         bears    burden    of     establishing         each    of    the

plain    error     requirements).           We   have    reviewed      the    record       and

conclude that the district court committed no reversible error

in the Rule 11 hearing.

               Counsel     also     questions      whether      the    district          court

committed plain error in sentencing Wright to the low end of the

applicable advisory Guidelines range.                        Appellate review of a

district court’s imposition of a sentence, “whether inside, just

outside, or significantly outside the Guidelines range,” is for

abuse of discretion.               Gall v. United States, 
552 U.S. 38
, 41

(2007).         This      review      requires     consideration         of       both     the

procedural and substantive reasonableness of a sentence.                             
Id. at 51.
     “Procedural reasonableness evaluates the method used to

determine      a   defendant’s        sentence,”      United       States    v.     Mendoza-

Mendoza,       
597 F.3d 212
,      216    (4th        Cir.     2010),        whereas,

“[s]ubstantive         reasonableness        examines        the     totality       of     the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied

the standards set forth in [18 U.S.C. § 3553(a) (2006)].”                            
Id. 3 This
   court     must    assess          whether    the     district     court

properly   calculated       the   advisory           Guidelines     range,     considered

the § 3553(a) factors, analyzed any arguments presented by the

parties,    and    sufficiently       explained            the     selected     sentence.

Gall, 552 U.S. at 49-50
; see also United States v. Lynn, 
592 F.3d 572
, 576 (4th Cir. 2010) (“[A]n individualized explanation

must accompany every sentence.”); United States v. Carter, 
564 F.3d 325
, 330 (4th Cir. 2009).                   A sentence imposed within the

properly calculated Guidelines range is presumed reasonable by

this court.      
Mendoza-Mendoza, 597 F.3d at 217
.

            We have reviewed the record with these standards in

mind.      Our    examination     leads         us    to   conclude      that       Wright’s

sentence is procedurally and substantively sound.                              Therefore,

the district court did not abuse its discretion in imposing the

chosen sentence.

            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 Wright, in writing, of the right to

petition   the     Supreme    Court    of       the    United      States     for    further

review.     If     Wright     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



                                            4
representation.    Counsel’s motion must state that a copy thereof

was served on Wright.

            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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