US v. Brandon Harrington, No. 09-4939 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4939 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON LAMAR HARRINGTON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08-cr-00323-TDS-1) Submitted: February 10, 2011 Decided: February 16, 2011 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North Carolina, for Appellant. Anand P. Ramaswamy, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brandon Lamar Harrington pleaded guilty pursuant to a written plea agreement to one count of conspiracy to distribute cocaine district base, in court violation imposed a of 21 downward U.S.C. § 846 variance (2006). sentence The of 188 months of imprisonment. Counsel for Harrington filed a brief in accordance v. with Anders California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal, but questioning whether the guilty plea was knowing and voluntary and whether the district court fashioned a reasonable sentence. Harrington filed a pro se supplemental brief. elected not to file a brief. A represents guilty a The Government Finding no error, we affirm. plea is constitutionally voluntary and intelligent valid choice among alternative courses of action open to the defendant. Carolina v. Alford, 400 U.S. 25, 31 (1970). We if it the North evaluate a guilty plea based on the the totality of the circumstances surrounding the guilty plea. F.3d 263, 278 United States v. Moussaoui, 591 (4th Cir 2010). Harrington did not move to withdraw his guilty plea, and this court therefore reviews the adequacy of the plea pursuant to Fed. R. Crim. P. 11 for plain error. See United States v. Vonn, 535 U.S. 55, 58-59 (2002) (holding defendant who lets Rule 11 error pass without objection in the district court must satisfy the plain-error test); United 2 States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). The district court properly conducted the Rule 11 hearing and the record reveals that Harrington s plea was knowing and voluntary. A review of the record reveals no error in sentencing. * When determining a sentence, the district court must calculate the appropriate advisory Sentencing Guidelines range and consider it in conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 552 U.S. 38, 49-50 (2007); United States v. Lynn, 592 F.3d 572 (4th Cir. 2010). Appellate review of a district court s imposition of a sentence, whether inside, just outside, or significantly outside the [g]uidelines range, is for abuse of discretion. Gall, 552 U.S. at 41. Sentences within the applicable Guidelines range may be presumed by the appellate court to be reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The district court followed the necessary procedural steps in Sentencing sentencing Guidelines Harrington, as appropriately advisory, * properly treating the calculating and Harrington s plea agreement included a waiver barring an appeal from the calculation of his sentence. However, the Government has not filed a motion to dismiss asserting the waiver, and we do not sua sponte enforce appellate waivers. See generally United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)). 3 considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. 262-327 months. Harrington s Guidelines range was The court granted a downward variance sentence of 188 months and the sentence may be presumed reasonable by this court. district Pauley, 511 F.3d at 473. court did not abuse its We conclude that the discretion in imposing the chosen sentence. Harrington questioning conviction career failing whether obtained offender to amendment filed pursuant reduce crack pro district enhancement further for the a to and his cocaine se supplemental court an erred plea Alford whether sentence in to court based on In using apply the sentences. brief the erred the a in latest accordance with Anders, we have reviewed these issues and the record in this case and therefore have found affirm no meritorious Harrington s issues conviction for and appeal. sentence. We This court requires that counsel inform Harrington, in writing, of the right to petition the Supreme Court of the United States for further filed, review. but If counsel Harrington believes requests that such that a a petition petition would be 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 Harrington. 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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