Filed: Apr. 29, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5175 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HOWARD SCOTT, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00991-PMD-1) Submitted: April 19, 2011 Decided: April 29, 2011 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Robert Haley, Assista
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5175 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. HOWARD SCOTT, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00991-PMD-1) Submitted: April 19, 2011 Decided: April 29, 2011 Before WILKINSON, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Robert Haley, Assistan..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5175
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HOWARD SCOTT,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00991-PMD-1)
Submitted: April 19, 2011 Decided: April 29, 2011
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Howard Scott pled guilty without a plea agreement to
one count of possession with the intent to distribute heroin, in
violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 2006
& Supp. 2010). The district court calculated Scott’s Guidelines
range under the U.S. Sentencing Guidelines Manual (2010) at 188
to 235 months’ imprisonment and sentenced Scott to 188 months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court erred in accepting Scott’s guilty plea and
abused its discretion in imposing sentence. We affirm.
Because Scott did not move in the district court to
withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.
11 hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). Our review of
the transcript of the guilty plea hearing leads us to conclude
that the district court substantially complied with the mandates
of Rule 11 in accepting Scott’s guilty plea and that the court’s
omissions did not affect Scott’s substantial rights.
Critically, the transcript reveals that the district court
ensured the plea was supported by an independent factual basis
and Scott entered the plea knowingly and voluntarily with an
understanding of the consequences. See United States v.
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DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Accordingly, we discern no plain error in the district court’s
acceptance of Scott’s guilty plea.
Turning to the sentence imposed, 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
“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,” 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. “When imposing a
sentence within the Guidelines, however, the [district court’s]
explanation need not be elaborate or lengthy because
[G]uidelines sentences themselves are in many ways tailored to
the individual and reflect approximately two decades of close
attention to federal sentencing policy.” United States v.
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Hernandez, 603 F.3d 267, 271 (4th Cir. 2010) (internal quotation
marks omitted). Additionally, before imposing sentence, the
district court must afford the defendant an opportunity to
allocute. See Fed. R. Crim. P. 32(i)(4)(A)(ii); United
States v. Muhammad,
478 F.3d 247, 249-50 (4th Cir. 2007).
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, we apply a
presumption on appeal that the sentence is reasonable. United
States v. Abu Ali,
528 F.3d 210, 261 (4th Cir. 2008). Such a
presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
In this case, the district court correctly calculated
and considered the advisory Guidelines range and heard argument
from counsel for Scott and counsel for the Government. The
court considered relevant § 3553(a) factors and explained that
the within-Guidelines sentence was warranted in light of the
nature and circumstances of the offense, Scott’s history and
characteristics, the need to provide just punishment, and the
need to provide needed medical care to Scott. Although the
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district court committed plain procedural error by failing to
allow Scott the opportunity to allocute, see Muhammad, 478 F.3d
at 249, we conclude that such error did not affect Scott’s
substantial rights,
Hernandez, 603 F.3d at 273. Further,
neither counsel nor Scott offers any grounds to rebut the
presumption on appeal that the within-Guidelines sentence of 188
months’ imprisonment is substantively reasonable. Accordingly,
we conclude that the district court did not abuse its discretion
in sentencing Scott.
In accordance with Anders, we have also reviewed the
remainder of 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
Scott, in writing, of the right to petition the Supreme Court of
the United States for further review. If Scott 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 Scott.
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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