Filed: Aug. 30, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5205 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SANFORD LEE MARTIN, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Glen E. Conrad, Chief District Judge. (4:09-cr-00038-GEC-1) Submitted: August 18, 2011 Decided: August 30, 2011 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5205 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SANFORD LEE MARTIN, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Glen E. Conrad, Chief District Judge. (4:09-cr-00038-GEC-1) Submitted: August 18, 2011 Decided: August 30, 2011 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. K..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5205
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SANFORD LEE MARTIN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Glen E. Conrad, Chief
District Judge. (4:09-cr-00038-GEC-1)
Submitted: August 18, 2011 Decided: August 30, 2011
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Killis T. Howard, KILLIS T. HOWARD, P.C., Lynchburg, Virginia,
for Appellant. Ronald Andrew Bassford, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sanford Lee Martin pleaded guilty, pursuant to a plea
agreement, to communicating a threat in interstate commerce, in
violation of 18 U.S.C. § 875(c) (2006). The district court
sentenced Martin to fifteen months’ imprisonment and three
years’ supervised release. 1 Martin appealed, and his counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), certifying that there are no meritorious issues for
appeal but asking this court to review the validity of Martin’s
guilty plea and to review the sentence for reasonableness. 2
Although informed of his right to file a pro se supplemental
brief, Martin has not done so. Finding no reversible error, we
affirm.
A guilty plea is constitutionally valid if it
“represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.” North
Carolina v. Alford, 400 U.S. 25, 31 (1970). This court
evaluates a guilty plea based on “the totality of the
circumstances” surrounding the guilty plea. United States v.
1
Martin has been released from prison and currently is
serving his term of supervised release.
2
Because the Government has not sought enforcement of
Martin’s waiver of appellate rights, we may conduct our review
of the sentence pursuant to Anders. See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
2
Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010). A properly
conducted Rule 11 colloquy creates a “strong presumption” that a
plea of guilty was taken appropriately and is “final and
binding.” United States v. Lambey,
974 F.2d 1389, 1394
(4th Cir. 1992) (en banc).
Martin did not move to withdraw his guilty plea, and
this court therefore reviews the adequacy of the plea pursuant
to Fed. R. Crim. P. 11 for plain error. See United States v.
Vonn, 535 U.S. 55, 58-59 (2002) (holding that “defendant who
lets Rule 11 error pass without objection” in district court
must satisfy plain-error test); United States v. Massenburg,
564
F.3d 337, 342 (4th Cir. 2009). To establish plain error, Martin
“must show: (1) an error was made; (2) the error is plain; and
(3) the error affects substantial rights.”
Massenburg, 564 F.3d
at 342-43. To demonstrate impact on his substantial rights,
Martin must show that, but for error, he would not have pleaded
guilty. United States v. Martinez,
277 F.3d 517, 532
(4th Cir. 2002). Even if such error is found, it is within this
court’s discretion to notice the error, and this court does so
“only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.”
Massenburg,
564 F.3d at 343 (internal quotation marks omitted).
We note that the district court neglected to inform
Martin of the maximum term of supervised release he faced and
3
the court’s authority to order restitution, as required by Rule
11(b)(1)(H) and (K), respectively. We conclude that the
district court’s minor omissions did not affect Martin’s
substantial rights. Martin’s sentence of imprisonment when
combined with the maximum term of supervised release to which he
was subject did not exceed the statutory maximum sixty-month
sentence. See United States v. Bejarano, 249 F.3d 1304, 1306
n.1 (11th Cir. 2001) (collecting cases). Moreover, the district
court did not order restitution in this case. Martin is
therefore unable to show that he would not have pleaded guilty
but for the district court’s omissions.
We now turn to Martin’s sentence. We review sentences
for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Diosdado-Star,
630 F.3d 359, 363 (4th Cir.), cert. denied,
131
S. Ct. 2946 (2011). This review requires consideration of both
the procedural and substantive reasonableness of a sentence.
Gall, 552 U.S. at 51. In determining procedural reasonableness,
this court considers whether the district court properly
calculated the defendant’s advisory Guidelines range, considered
the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments
presented by the parties, and sufficiently explained the
selected sentence.
Id. Once the court assures itself that
there was no procedural error, we next assess the substantive
4
reasonableness of the sentence. This inquiry requires us to
review “whether the District Judge abused his discretion in
determining that the § 3553(a) factors supported [the sentence]
and justified a substantial deviation from the Guidelines
range.” Gall, 552 U.S. at 56. We “must ‘take into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Morace,
594 F.3d 340, 346 (4th Cir.) (quoting
Gall, 552 U.S. at 51),
cert. denied,
131 S. Ct. 307 (2010). This court affords within-
Guidelines sentences a presumption of substantive
reasonableness. See United States v. Mendoza-Mendoza,
597 F.3d
212, 216-17 (4th Cir. 2010).
With these standards in mind, our review of the record
leads us to conclude that Martin’s sentence is procedurally
sound. In addition, we can identify no facts that would
overcome the presumption that the sentence imposed was
substantively reasonable.
In accordance with Anders, we have thoroughly reviewed
the entire 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 Martin, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Martin requests that a
petition be filed, but counsel believes that such a petition
5
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 Martin.
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.
AFFRIMED
6
