US v. Laqurone Kinney, No. 09-4514 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4514 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LAQURONE TRANKIL KINNEY, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:08-cr-00622-TLW-1) Submitted: July 29, 2010 Decided: August 23, 2010 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina; Edye Moran, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Rose Mary Sheppard Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Laqurone Trankil Kinney pled guilty without a plea agreement to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006), and was sentenced to 112 months in prison. Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that after a review of the record, he has found no meritorious issues for appeal. The Anders brief nonetheless discusses whether the district court erred when it accepted Kinney s guilty plea, and whether the district Kinney court filed properly a pro se calculated Kinney s supplemental brief, Guidelines arguing range. that the district court erred when it applied the first-degree attempted murder cross-reference to determine his base offense level for his offense. brief. The Government declined to file a responsive Concluding that no reversible error occurred, we affirm. First, we hold that the district court committed no error when it accepted Kinney s guilty plea. a guilty plea, a trial court, through Prior to accepting colloquy with the defendant, must inform the defendant of, and determine that the defendant understands the nature of, the charges to which the plea is offered, any possible penalty he mandatory faces, and relinquishing by pleading guilty. 2 minimum the penalty, various the rights maximum he Fed. R. Crim. P. 11(b). is In reviewing the adequacy of compliance with Rule 11, this Court should accord deference to the trial court s decision as to how best to conduct the mandated colloquy with the defendant. United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Because Kinney did not move the district court to withdraw his guilty plea, any errors in the Rule 11 hearing are reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To establish plain error, [Kinney] must show that an error occurred, that the error was plain, and that the error affected his substantial rights. v. Muhammad, omitted). 478 Even F.3d if 247, Kinney 249 (4th satisfies Cir. these United States 2007) (citation requirements, the court retains discretion to correct the error, which it should not exercise unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotation marks, brackets and citations omitted). The record reveals that the district court complied with Rule 11 s requirements, ensuring that Kinney s plea was knowing and voluntary, that he understood the rights he was giving up by pleading guilty and the sentence he faced, and that he committed Accordingly, committed the we during offense hold the that to which no error, district he court s was plain or guilty. otherwise, acceptance guilty plea and affirm Kinney s conviction. 3 pleading of was Kinney s We also presentence affirm investigation Kinney s report sentence. properly Kinney s placed him in a category III criminal history and attributed him with a total offense level of thirty-two, based on the attempted first-degree murder cross-reference, yielding a Guidelines range of 151 to 188 months in prison. accordance district with court 18 Due to the ten-year statutory maximum, in U.S.C. properly § 924(a)(2) recognized that (2006), however, Kinney s the Guidelines range was 120 months, pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 5G1.1(a) (2008). Given the testimony presented at Kinney s sentencing hearing, we find no clear error in the district court s decision to calculate Kinney s total offense level reference. using the first-degree attempted murder cross- See 18 U.S.C. § 1111 (2006) (defining first-degree murder); USSG § 2A2.1(a)(2) (2008) (providing base offense level thirty-three if object of the offense would have constituted first degree murder if successful). We also find that no reversible error occurred during the district court s sentencing hearing. court took testimony applicability reference of and the from numerous attempted appropriately Although the district witnesses concerning first-degree heard murder counsel s the cross- argument at sentencing regarding Kinney s objections to his Guidelines range calculation, the district court 4 correctly overruled those objections. The district court entertained counsel s argument regarding the weight that should be afforded the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors, gave Kinney an opportunity to allocute, and considered the § 3553(a) factors before imposing Kinney s sentence. We find no reversible error in the district court s explanation for its 112-month sentence and give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance. See United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007) (internal quotation marks and citation omitted). 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 Kinney, in writing, of the right to petition the Supreme review. If Kinney Court of requests the that United a States petition be for further filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Kinney. We dispense with oral argument because the facts and legal contentions are adequately presented in the 5 materials before the court and argument would not aid the decisional process. AFFIRMED 6

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