US v. Contaurus Smith, No. 12-4537 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4537 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CONTAURUS DERMONT SMITH, a/k/a Vashon Smith, a/k/a Rammelle Spencer, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, District Judge. (3:11-cr-02333-CMC-1) Submitted: January 4, 2013 Decided: January 16, 2013 Before NIEMEYER, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. James P. Rogers, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Robert Claude Jendron, Jr., Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Contaurus Dermont Smith appeals his eighty-seven month sentence written imposed plea following agreement, to his guilty one count plea, of pursuant being a to felon a in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). Counsel for Smith filed a written brief in this court in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal but questioning whether the district court complied with Rule 11 in accepting Smith s guilty plea, and whether Smith s sentence is procedurally unreasonable. Smith was given an opportunity to file a pro se supplemental brief but has not done so. The Government has also elected not to file a brief. the reasons that follow, we affirm the district For court s judgment. We first address the validity of Smith s guilty plea. Rule 11 requires the district court to perform the following procedures prior to accepting a defendant s guilty plea: the court must conduct a colloquy in which it informs the defendant of the charges against him and determines that he comprehends the nature of those charges, any mandatory minimum penalty, the maximum possible penalty, and the rights he is relinquishing by pleading guilty; the court must ensure that the defendant s plea 2 is voluntary; and the court must ensure that there is a factual basis for the guilty plea. Fed. R. Crim. P. 11(b). Because Smith did not move to withdraw his guilty plea in the district court or raise any objections to the Rule 11 colloquy, the colloquy is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate plain error, a defendant must show: (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights. 732-34 (1992). United States v. Olano, 507 U.S. 725, To establish that a Rule 11 error has occurred, the defendant must show a reasonable probability that, but for the error, he would not have entered the plea. v. Dominguez Benitez, 542 U.S. 74, 83 (2004). United States A review of the record reveals that the district court properly ensured that Smith s plea was knowing, sufficient factual basis. voluntary, and supported by a We therefore hold that the district court fully complied with Rule 11 in accepting Smith s guilty plea. We sentence. review for next the reasonableness of Smith s Applying an abuse of discretion standard, we first procedural significant procedural reasonableness. In address reviewing reasonableness, error, then and in review the for absence of substantive Gall v. United States, 552 U.S. 38, 51 (2007). for significant procedural 3 error, we consider whether the district court improperly calculated the Guidelines range, failed to 3553(a) (2006) factors, or failed to adequately explain its sentence. Gall, 552 U.S. at 51. must make an consider the 18 U.S.C. § To avoid procedural error, the district court individualized assessment, by applying the relevant § 3553(a) factors to the specific circumstances of the defendant s case. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The district court also should justify its rejection of the parties sentences based on § 3553. 584 (4th Cir. 2010). arguments for higher or lower United States v. Lynn, 592 F.3d 572, We then review for substantive reasonableness, which is determined considering the totality of the circumstances. Gall, 552 U.S. at 51. However, if the sentence is within the Guidelines range, we apply a presumption of reasonableness. See id. We conclude that the sentence imposed by the district court is both procedurally and substantively reasonable. district court considered the assessment, and properly § 3553(a) explained calculated factors, its the provided reasons for Guidelines an The range, individualized rejecting Smith s request for a downward variance, and then reasonably imposed a within-Guidelines sentence. In accordance with Anders, we have reviewed the record in this case and find no meritorious issues for appeal. 4 We therefore affirm the district court s judgment. This court requires that counsel inform Smith, in writing, of the right to petition the Supreme Court of the United States for further review. If Smith requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Smith. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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