US v. Benny Franklin, No. 09-4029 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4029 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BENNY WAYNE FRANKLIN, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:07-cr-00428-WO-1) Submitted: April 22, 2010 Decided: June 2, 2010 Before TRAXLER, Chief Judge, and MOTZ and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Benny written plea Wayne Franklin agreement, to pled guilty, conspiracy to pursuant to manufacture a and distribute 500 grams or more of methamphetamine and to possess pseudoephedrine, in violation (b)(1)(A), 846 (2006). of 21 U.S.C. §§ 841(a)(1), The district court sentenced Franklin to 360 months imprisonment. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. We affirm. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. Our review of the transcript of the guilty plea hearing leads us to conclude that the district court substantially complied with the mandates of Fed. R. Crim. P. 11 in accepting Franklin s guilty plea infringed. and that Franklin s substantial rights were not Critically, the transcript reveals that the district court ensured the plea was supported by an independent factual basis and voluntarily that Franklin an States See United with v. entered understanding DeFusco, 949 the plea of F.2d knowingly the and consequences. 114, 116, 119-20 (4th Cir. 1991). Turning to Franklin s sentence, we review it under a deferential abuse-of-discretion States, 552 U.S. 38, 41 (2007). 2 standard. Gall v. United In conducting this review, we must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence. Id. at 51. When rendering a sentence, the district court must make an individualized assessment based on the facts presented, applying the relevant § 3553(a) factors to the specific circumstances of the case before it. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation state marks in open and emphasis court the omitted). particular The court reasons must also supporting its chosen sentence and set forth enough to satisfy this court that it reasoned has considered basis authority. for the parties exercising [its] arguments own legal and has a decisionmaking Id. (internal quotation marks omitted). Once we have determined that the sentence is free of procedural error, reasonableness of we the must sentence, totality of the circumstances. consider the tak[ing] into substantive account Gall, 552 U.S. at 51. the If the sentence is within the appropriate Guidelines range, this court applies a presumption on appeal that the sentence is reasonable. See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008). 3 In this case, the district court correctly calculated the advisory Guidelines range and heard argument from Franklin s counsel and committed allocution procedural from Franklin. error in Although failing to the court provide an individualized assessment of Franklin s case, we conclude that the court s omission did not affect Franklin s substantial rights. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). Furthermore, neither counsel nor Franklin has put forth any factors to reasonableness overcome afforded the appellate Franklin s presumption within-Guidelines of sentence. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Franklin. Finally, after review of Franklin s pro se brief, we conclude that it raises no meritorious issues for appeal. therefore affirm the district court s judgment and We deny Franklin s motions to withdraw the Anders brief and to appoint counsel. writing, This court requires that counsel inform Franklin, in of the right to petition United States for further review. the Supreme Court of the If Franklin 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 motion must state that a copy thereof was served on Franklin. 4 We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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