US v. Jermoll Burt, No. 08-5119 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5119 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMOLL BURT, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:06-cr-00213-1) Submitted: March 29, 2010 Decided: April 21, 2010 Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew A. Victor, VICTOR VICTOR & HELGOE, LLP, Charleston, West Virginia, for Appellant. Erik S. Goes, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jermoll Burt pled guilty, pursuant to a written plea agreement, to conspiracy to distribute fifty kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (2006). district court calculated Burt s advisory The Guidelines imprisonment range under the U.S. Sentencing Guidelines Manual (2007) at seventy-eight to ninety-seven months imprisonment, but granted a downward variance and imposed a seventy-two month sentence. On appeal, Burt s attorney filed a brief in accordance Anders with v. California, 386 meritorious issues for appeal. U.S. 738 (1967), noting no Burt was advised of his right to file a pro se supplemental brief and, despite several extensions of time, has not done so. The Government declined to file a brief and does not seek to enforce the plea agreement s appeal waiver. * Finding no reversible error, we affirm. Burt does not challenge the district court s denial of his pre-sentencing Therefore, States v. our motion review Ubakanma, 215 is to for F.3d withdraw abuse 421, * of 424 his guilty discretion. (4th Cir. plea. United 2000). We Because the Government fails to assert the appellate waiver contained in Burt s plea agreement, we may conduct an Anders review. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007). 2 closely scrutinize the Fed. R. Crim. P. 11 colloquy and attach a strong presumption that the plea is final and binding, after determining that States Lambey, v. Critically, the the Rule 974 11 hearing F.2d transcript 1389, reveals was adequate. (4th 1394 that United 1992). the Cir. district court ensured the plea was supported by an independent factual basis, and that Burt entered the plea knowingly and voluntarily with an understanding of the consequences. See United States v. Wilson, 81 F.3d 1300, 1307 (4th Cir. 1996). hearing was adequate and that Finding that the Rule 11 Burt failed to overcome the presumption that his plea is final and binding, we conclude the district court did not abuse its discretion in denying the See United States v. Moore, motion to withdraw his guilty plea. 931 F.2d 245, 248 (4th Cir. 1991) (listing factors to consider when addressing motion to withdraw plea). Turning to Burt s sentence, we review reasonableness under an abuse of discretion standard. United States, correctly argument 552 U.S. calculated from allocution from the the 38, (2007). advisory parties Burt. 51 The on Guidelines the court The range the for Gall v. district appropriate considered it and court heard sentence relevant and 18 U.S.C. § 3553(a) (2006) factors, addressing on the record the nature and circumstances characteristics, Burt s of the request 3 offense, for a Burt s history downward and variance considering he had served a 169-day sentence for a state conviction arising out of an offense that occurred during the federal conspiracy, and the need to impose a sentence that was sufficient, but not sentencing goals. greater than to meet the We find no error by the district court in calculating Burt s Guidelines range. (providing necessary standard of review). See Gall, 552 U.S. at 51 Furthermore, the district court s statements at the sentencing hearing clearly reflect a valid and individualized assessment under § 3553(a) and justify the sentence imposed. See United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009); United States v. Pauley, 511 F.3d 468, 473-75 (4th Cir. 2007). In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Burt s conviction and sentence. This court requires that counsel inform Burt, in writing, of the right to petition the Supreme Court of the United States for further review. If Burt requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Burt. We dispense with oral argument because the facts and legal contentions are adequately 4 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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