US v. Michael Martisko, No. 08-4905 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4905 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL B. MARTISKO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:07-cr-00104-IMK-3) Submitted: April 28, 2009 Decided: May 20, 2009 Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Kumaraswamy Sivakumaran, STERLING LEGAL Clarksburg, West Virginia, for Appellant. Wesley, Assistant United States Attorney, Virginia, for Appellee. SERVICES PLLC, Zelda Elizabeth Clarksburg, West Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael B. Martisko timely appeals from the twentyfour month sentence imposed following his guilty plea to one count of aiding and abetting in the distribution of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006) and 18 U.S.C. § 2 (2006). Martisko s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal, but questioning whether the district court complied with Federal Rule of Criminal Procedure 11 (2009) ( Rule 11 ) in accepting Martisko s guilty reasonable. was informed plea and whether Martisko s sentence was Martisko has not filed a pro se brief, though he of his right to do so. Finding no error, we affirm. Martisko first asks this court to review whether the district court complied with Rule 11 in accepting his guilty plea. Because Martisko did not move to withdraw his guilty plea in the district court or raise any objections to the Rule 11 plea colloquy, we review the adequacy of the plea hearing for plain error. United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002); United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). To demonstrate plain error, Martisko must show that error occurred, that the error was plain, and that the 2 error affected his substantial rights. General, 278 F.3d at 393 (internal quotation marks and citation omitted). Our review of the plea hearing transcript reveals that the district court substantially complied accepting Martisko s guilty plea. with Rule 11 in Martisko s plea was knowing, voluntary, and intelligently made, with full understanding of the consequences of his plea, and the district court found sufficient factual basis for the plea. See Fed. R. Crim. P. 11(b). did Although the district court not explain its authority to order restitution or make any mention of forfeiture as required by Rule 11(b)(1)(J)-(K), these omissions did not affect Martisko s substantial rights because the court did not ultimately order restitution and forfeiture is not applicable. Accordingly, we find no plain error. Martisko reasonableness of also his asks this sentence. court to Consistent review with the United States v. Booker, 543 U.S. 220 (2005), the district court is required to follow a multi-step process at sentencing. First, it must calculate the proper sentencing range prescribed by the Guidelines. Gall v. United States, 128 S. Ct. 586, 596 (2007); see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir. 2008). The court must then consider that range in light of the parties arguments regarding the appropriate sentence and the factors set out in 18 U.S.C. § 3553(a) (2006) before imposing 3 sentence. Gall, 128 S. Ct. at 596; see also Abu Ali, 528 F.3d at 260. This court reviews the district court s sentence for abuse of discretion. Gall, 128 S. Ct. at 591. ensure court the district did not commit First, we must any significant procedural error, such as failing to consider the 18 U.S.C. § 3553(a) factors or failing to adequately explain the sentence. Id. at 597. Second, we must consider the substantive reasonableness of the sentence, taking into account the totality of the circumstances. the appropriate reasonable. 2008). If the sentence imposed is within Id. Guidelines range, it is presumptively United States v. Go, 517 F.3d 216, 218 (4th Cir. The presumption may be rebutted by a showing that the sentence is unreasonable when measured against the § 3553(a) United States v. Montes-Pineda, 445 F.3d 375, 379 factors. (4th Cir. 2006) (internal quotation marks and citation omitted). Our substantive review error Martisko s sentence. of in the the record reveals district no court s procedural imposition or of The district court properly calculated the appropriate Guidelines range of twenty-four to thirty months and considered district the Guidelines as court considered the Martisko s allocution, and advisory. 18 the U.S.C. arguments before imposing Martisko s sentence. 4 Additionally, § of the 3553(a) factors, both attorneys The district court also provided a lengthy explanation of the reasons for its sentence, citing Martisko s long criminal history, the nature current offense, and the need to protect the public. we view Martisko s within-Guidelines and Martisko of Moreover, sentence on has rebutted not the appeal as presumptively reasonable that presumption. Thus, we conclude that the district court did not abuse its discretion in sentencing Martisko and the sentence is reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Martisko s conviction and sentence. This court requires that counsel inform Martisko, in writing, of his right to petition the Supreme Court of the United States for further review. If Martisko requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Martisko. We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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