US v. Leon Bessant, Jr., No. 10-4380 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4380 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEON BESSANT, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00136-WO-1) Submitted: February 3, 2011 Decided: March 3, 2011 Before MOTZ, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leon Bessant, Jr., appeals from his conviction and sixty-month sentence following a guilty plea to two counts of distribution of cocaine base, in violation of 21 § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2010). U.S.C.A. On appeal, Bessant s counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). no meritorious issues for Counsel states that there are appeal, but questions whether the district court complied with Fed. R. Crim. P. 11 in accepting Bessant s guilty plea and whether the district court erred in sentencing Bessant. Bessant was advised of his right to file a pro se brief, but has not done so. Bessant first We affirm. questions whether the district court complied with Fed. R. Crim. P. 11, by sufficiently informing Bessant that he faced a mandatory years imprisonment on both counts. move in the district court to minimum sentence of five Because Bessant did not withdraw his guilty plea, review any error in the Rule 11 hearing for plain error. we United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our review of the appellate record convinces us that the district court fully complied with the mandates of Rule 11 in accepting Bessant s guilty plea. In doing so, the district court properly informed Bessant of the nature of the charges and penalties he faced, explicitly stating that he faced a term of 2 imprisonment of district court voluntary and not less ensured than that supported by five years. the guilty a factual Moreover, plea was knowing basis. See the and United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We therefore affirm his conviction. Bessant erred in imposing reasonableness, also questions sentence. applying whether the district court This court reviews a sentence for an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires appellate consideration of both the procedural Gall, 552 U.S. at and substantive reasonableness of a sentence. 51. In determining procedural reasonableness, we consider 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. specifically questions whether the district Bessant Id. court erred in calculating his criminal history category by including a state conviction that occurred after the conduct, imposition of sentence, in the present case. but before Although Bessant s sentence for the state narcotics conviction was imposed in 2007, after the commencement of the instant offense, it is nonetheless 3 a prior sentence because it was for conduct unrelated to the instant offense and was imposed prior to the January 7, 2010 sentencing for the instant offense. U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n.1 (2008). Bessant s criminal history category thus was properly calculated. Because Bessant s record sentencing, procedurally pursuant the we the In statutory substantively reasonable. 210, 224 conclude reasonable. to (4th Cir. reveals no procedural that addition, mandatory the error sentence Bessant s minimum in is sentence is per se United States v. Farrior, 535 F.3d 2008). Accordingly, we affirm Bessant s sentence as reasonable. We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. Accordingly, we affirm the judgment of the district court. This writing, of court the requires right to that petition United States for further review. counsel the inform Supreme Bessant, Court of in the If Bessant 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 state that a copy thereof was served on Bessant. motion must We dispense with oral argument because the facts and legal contentions are 4 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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